Creed v. Virginia

• Decision Date: 12 January 2009
• Docket Number: No. 1:08cv862 (JCC).,1:08cv862 (JCC).
• Citation: 596 F.Supp.2d 930
• Parties: John P. CREED, Plaintiff, v. Commonwealth of VIRGINIA et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

596 F.Supp.2d 930

John P. CREED, Plaintiff, v. Commonwealth of VIRGINIA et al., Defendants.

No. 1:08cv862 (JCC).

United States District Court, E.D. Virginia, Alexandria Division.

January 12, 2009.

COPYRIGHT MATERIAL OMITTED

Gregory Lynn Murphy, Paul Warren Mengel, Vorys Sater Seymour & Pease LLP, Alexandria, VA, for Plaintiff.

George Walerian Chabalewski, Office of the Attorney General, Richmond, VA, Jeff Wayne Rosen, Pender & Coward PC, Virginia Beach, VA, for Defendants.

MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.

This matter comes before the Court on Plaintiff Creed's Objection to Removal and Motion to Remand, and the Motion to Remand filed by Defendant Commonwealth of Virginia (the "Commonwealth"). For the reasons stated below, the Court will grant both motions.

I. Background

Plaintiff John Creed ("Plaintiff") brought this suit after his son, William Creed ("Creed"), died while in custody at the Prince William-Manassas Regional Adult Detention Center (the "ADC"). Plaintiff filed an amended complaint (the "Complaint") in the Circuit Court of Prince William County, Virginia, on June 30, 2008. The Complaint alleges that Creed, who was detained for larceny and was exhibiting signs of mental instability, became combative and resistant during a medical examination before his planned transfer from the ADC to Western State Hospital for involuntary commitment. Def.'s Pet. for Removal, Ex. A, at ¶¶ 31-33. Several unknown John Does, also named as defendants, restrained Creed. The Complaint alleges that he was placed into a choke hold and then stopped breathing. Id. at ¶ 34. The autopsy report gave Creed's cause of death as "acute stress-induced cardiac arrhythmia due to acute restraint-induced asphyxia and blunt trauma." Id. at ¶ 38.

Plaintiff filed suit against the Commonwealth, Prince William County Sheriff Glendell Hill ("Hill"), ADC Superintendent Charles Land ("Land"), ADC Director of Inmate Services Peter Meletis ("Meletis"), and various unknown John Does ("John Doe Defendants") (collectively, "Defendants"). The suit contains five counts: (I) negligence, against the Commonwealth, filed through the Virginia Tort Claims Act (the "VTCA" or the "Act"), Va.Code Ann. § 8.01-195.1 et seq.; (II) gross negligence, against Defendants; (III) willful and wanton negligence, against Defendants; (IV) claims under 42 U.S.C. § 1983, against the John Doe Defendants; and (V) supervisory liability claims under 42 U.S.C. § 1983, against Hill, Land, and Meletis. Id. at ¶¶ 44-64. Plaintiff seeks $20,000,000 in compensatory damages, plus punitive damages, costs, and attorneys' fees. Id. at 15.

On August 21, 2008, Defendants Hill, Land, and Meletis (collectively, the "Individual Defendants") filed a Petition for Removal under 28 U.S.C. §§ 1331, 1441, 1443, and 1446. Jurisdiction in this Court is founded on the Plaintiff's federal claims and the federal questions arising therefrom. The Individual Defendants argue that because the Commonwealth and John Doe Defendants are only nominal parties, they do not need their consent to remove the case from state court. Pet. for Removal at ¶¶ 7-9.

The Commonwealth does not consent to removal. On August 26, 2008, it filed an objection to removal and a Motion to Remand. Plaintiff also objected to removal and, on September 18, moved for a remand. The Individual Defendants submitted a separate Opposition to each motion. After oral argument on the motions, the Individual Defendants filed an affidavit further supporting their removal petition; Plaintiff responded with additional legal arguments, the Individual Defendants filed a reply, and Plaintiff ended the exchange with a sur-reply. The motions to remand are before the Court.

II. Analysis

Plaintiff and the Commonwealth raise overlapping arguments in their objections to removal. Each is rooted in the impropriety of removing the case without the consent of the Commonwealth. The Commonwealth objects to removal because, it argues, this Court cannot take jurisdiction over the claim brought against it under the VTCA for sovereign immunity reasons. The Commonwealth also raises a related Eleventh Amendment argument against removal. Plaintiff expands on both of the Commonwealth's arguments and contends that the case cannot be removed because the Commonwealth did not consent to removal.¹

A. The Rule of Unanimity and the Exception for "Nominal" Parties

Under 28 U.S.C. § 1446(a), "[a] defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal." Courts construe the removal statute strictly because removal, by its nature, infringes upon state sovereignty. See Bellone v. Roxbury Homes, Inc., 748 F.Supp. 434, 436 (W.D.Va.1990); see also Crockett v. Gen. Motors Corp., 2008 WL 5234702, at *2 (E.D.Va. Dec. 15, 2008).

Generally, all defendants must unanimously join or consent to removal within thirty days of being served with the initial pleadings. 28 U.S.C. § 1446(b); Unicom Systems, Inc. v. Nat'l Louis Univ., 262 F.Supp.2d 638, 640 (E.D.Va. 2003); see Chicago, R.I. & P.R. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900). This "rule of unanimity" requires that each defendant "register to the Court its official and unambiguous consent to a removal petition filed by a co-defendant." Stonewall Jackson Mem'l Hosp. v. Am. United Life Ins. Co., 963 F.Supp. 553, 558 (N.D.W.Va.1997).

One exception to the rule of unanimity is that the defendant seeking removal does not need the consent of a co-defendant present in the case as "merely a nominal or formal party." Bellone, 748 F.Supp. at 436-37. The party seeking removal has the burden of proving that the objecting party is merely nominal. See Blue Mako, Inc. v. Minidis, 472 F.Supp.2d 690, 696 (M.D.N.C.2007) (citing 14C Wright, Miller & Cooper, Federal Practice and Procedure § 3731, at 270-71 (3d ed.1998)).

In this case, the Commonwealth does not consent to removal. Whether removal is proper, then, turns on whether the Commonwealth should be considered "merely a nominal or formal party," or, instead, a real party in interest whose failure to join the petition for removal requires the Court to remand the case to the Virginia Circuit Court. Id. at 437. Plaintiff argues that the Commonwealth is more than a nominal party because it is subject to liability under the VTCA. The Commonwealth, while agreeing with the Individual Defendants that ultimately it should not be held liable in the case, asserts that it is more than a nominal party because the procedural posture of the case puts its sovereign immunity into issue.

The Fourth Circuit has not defined "nominal party" for removal purposes. See Allen v. Monsanto Co., 396 F.Supp.2d 728, 732 (S.D.W.Va.2005). Other courts have employed a variety of definitions. The Fifth Circuit has identified a nominal party as one serving solely as a "depositary or stakeholder;" whether a defendant party is nominal, the court explained, depends on the facts of each case. Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants' Local 349, 427 F.2d 325, 327 (5th Cir.1970) (quotation omitted). The same court subsequently held that a party was "nominal" where there was no possibility that the plaintiff could establish a cause of action against it in state court. Farias v. Bexar Cty. Bd. of Trustees for Mental Health Mental Retardation, 925 F.2d 866, 871 (5th Cir.1991) (quotation omitted); see also Norman v. Cuomo, 796 F.Supp. 654, 658 (N.D.N.Y.1992) (citations omitted).

In Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir.1993), the Seventh Circuit stated that "a defendant is nominal if there is no reasonable basis for predicting that it will be held liable." The Eighth Circuit has defined nominal defendants as those "against whom no real relief is sought." Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir.2002) (quotation omitted). Examples of a nominal party include a party with no assets or one that does not actively engage in business, Egle Nursing Home, Inc. v. Erie Ins. Group, 981 F.Supp. 932, 933 (D.Md.1997) (citations omitted), a garnishee with no real interest in the litigation, Kiddie Rides USA, Inc. v. Elektro-Mobiltechnik GMBH, 579 F.Supp. 1476, 1480 (C.D.Ill. 1984), or an incidental party—one not concerned with who actually wins the suit Selfix, Inc. v. Bisk, 867 F.Supp. 1333, 1335-36 (N.D.Ill.1994) (citations omitted).

Within this Circuit, the nominal party inquiry has been interpreted to turn on whether there is any "legal possibility for predicting" that the party could be held liable. Allen, 396 F.Supp.2d at 733; see also Blue Mako, Inc., 472 F.Supp.2d at 696; Mayes v. Moore, 367 F.Supp.2d 919, 921-22 (M.D.N.C.2005). One test used by district court in this Circuit to determine whether a party is "nominal" asks whether a court would be able to enter a final judgment favoring the plaintiff in the absence of the purportedly nominal defendant without materially affecting the relief due to the plaintiff. Blue Mako, Inc., 472 F.Supp.2d at 696 (citing Mayes, 367 F.Supp.2d at 922). In summary, the central inquiry appears to be whether, looking at the facts of the case as they appear at the preliminary stage of a petition for removal, the party in question is in some manner genuinely adverse to the plaintiff.

B. Whether the Commonwealth is a Nominal Party

The Complaint alleges that the ADC is an "agency" of the Commonwealth, as defined by the VTCA. The VTCA provides a limited waiver of sovereign immunity from suit. This waiver applies to, among other claims, those for "personal injury or death caused by the negligent or wrongful act or omission of any employee while acting in the scope of his employment under circumstances where the Commonwealth . . . if a private person, would be liable." Va.Code Ann. § 8.01-195.3. The statute define...