Creekmore v. Food Lion, Inc.

• Decision Date: 23 July 1992
• Docket Number: Action No. 2:92cv192.
• Citation: 797 F. Supp. 505
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Nell B. CREEKMORE, Plaintiff, v. FOOD LION, INC., Stanley Works, Inc., and Carolina Door Controls, Inc., Defendants.

797 F. Supp. 505

Nell B. CREEKMORE, Plaintiff, v. FOOD LION, INC., Stanley Works, Inc., and Carolina Door Controls, Inc., Defendants.

Action No. 2:92cv192.

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

July 23, 1992.

Kenneth Lee Dietrick, Douglas Wayne McCartney, Dietrick & McCartney, Chesapeake, Va., for plaintiff.

Robert W. McFarland, McGuire, Woods, Battle & Boothe, Norfolk, Va., for defendant Food Lion, Inc.

Thomas Crawford Palmer, Jr., Brault, Palmer, Grove, Zimmerman, White & Mims, Manassas, Va., for defendant Stanley Works, Inc.

Jamie Anderson Stalnaker, Williams, Kelly & Greer, Norfolk, Va., for Carolina Door Controls, Inc.

OPINION AND ORDER

REBECCA BEACH SMITH, District Judge.

Plaintiff Creekmore alleges that on February 8, 1990, upon entering a Food Lion in Portsmouth, Virginia, the automatic electric doors shut and struck her, causing her personal injuries and damages in the amount of $250,000. On January 30, 1992, Creekmore filed this action in the Circuit Court for the City of Portsmouth, Virginia. Food Lion, Inc. ("Food Lion") filed a notice of removal to this court on March 6, 1992, claiming diversity of citizenship under 28 U.S.C. § 1332, and claiming the consent of counsel for defendants, Stanley Works, Inc. ("Stanley Works") and Carolina Door Controls, Inc. ("Carolina Door"). On March 13, 1992, Creekmore filed a Motion to Remand this action to state court on the grounds that Food Lion filed its notice of removal without joinder or formal consent of Stanley Works and Carolina Door. The court conducted a hearing on May 13, 1992,¹ at the end of which the court granted Creekmore's motion and remanded the case to the Circuit Court of the City of Portsmouth.

This matter comes before the court on Food Lion's motion, filed May 26, 1992, for reconsideration of the court's remand order, pursuant to Rule 60 of the Federal Rules of Civil Procedure. Neither Stanley Works nor Carolina Door has joined Food Lion's motion. Creekmore filed a brief in opposition to Food Lion's motion for reconsideration, contending that 28 U.S.C. § 1447(d) specifically precludes such review of a remand order. Creekmore also requests attorney fees incurred as a result of Food Lion's original removal, pursuant to 28 U.S.C. § 1447(c), and sanctions, pursuant to Rule 11 of the Federal Rules of Civil Procedure, against Food Lion and counsel for Food Lion for submitting the motion for reconsideration.

I. The Decision to Remand

The court first sets forth the grounds on which it based its decision to remand this case to state court. Defendants Food Lion and Stanley Works were served with the complaint on February 11, 1992, but defendant Carolina Door was not served until March 27, 1992. On March 6, 1992, Food Lion filed its notice of removal, less than thirty days after it was served, but before Carolina Door was served, and asserted the consent of Stanley Works and Carolina Door:

7. The undersigned is counsel of record for Food Lion, Inc. in this action, and is duly authorized to effect removal on behalf of Food Lion, Inc., which consents to the removal. In addition, counsel for Stanley Works, Inc. has authority to consent to this removal on behalf of Stanley Works, Inc., and does so consent. Counsel for Carolina Door Controls, Inc. has authority to consent to this removal on behalf of Carolina Door Controls, Inc., and does so consent.

8. The facts set forth in the notice for removal are true and correct to the best of my knowledge, information and belief.

Counsel for Stanley Works and Carolina Door never endorsed Food Lion's notice of removal, never separately or jointly filed any removal pleadings, and never filed any affidavits of formal consent to the removal. Furthermore, Stanley Works and Carolina Door failed to appear, upon proper notice, even at the May 13, 1992, hearing on Creekmore's motion to remand.²

Creekmore moved to remand the case on the basis that Stanley Works and Carolina Door had not consented to the removal. The issue raised by Creekmore's motion to remand was whether Food Lion's assertion alone, through its counsel, in its notice of removal that all defendants consented to removal was sufficient to constitute consent of all defendants within the meaning of 28 U.S.C. § 1446.

Removal of civil cases to federal court infringes state sovereignty. Consequently, courts strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Abels v. State Farm Fire & Casualty Co., 770 F.2d 26 (3d Cir.1985). Assuming that defendants established the jurisdictional requirements of 28 U.S.C. § 1441,³ the removal statute requires "a defendant or defendants" to file a notice of removal within thirty days "after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief." 28 U.S.C. § 1446(a)-(b). Failure of all defendants to comply with these provisions generally constitutes an adequate ground for remand to state court. Adams v. Aero Servs. Int'l, Inc., 657 F.Supp. 519, 521 (E.D.Va.1987).⁴

Although all defendants must join in the removal, the rule of unanimity does not require that all defendants sign the same notice of removal. Rather, section 1446 requires that each defendant file a notice of removal, either independently or by unambiguously joining in or consenting to another defendant's notice, within the thirty-day period following service of process. E.g., Wilkins v. Correctional Medical Sys., No. 90-7155, 1991 WL 68791, at *2 n. 2, 1991, U.S.App.LEXIS 8279, at *4 n. 2 (4th Cir.1991) ("Because the filing requirements contained in 28 U.S.C. § 1446 are mandatory, there is no federal jurisdiction when one of the defendants fails to join in, file his own, or officially and unambiguously consent to, a removal petition within 30 days of service.") (emphasis added) (unpublished); Adams, 657 F.Supp. at 521 (citations omitted); Mason v. International Business Machines, Inc., 543 F.Supp. 444, 446 (M.D.N.C.1982).

Food Lion acknowledged that neither Stanley Works nor Carolina Door independently filed a notice of removal or joined in Food Lion's notice. Food Lion argued, however, that its representations of consent on behalf of Stanley Works and Carolina Door satisfied the statute. Food Lion argued that because Rule 11 of the Federal Rules of Civil Procedure governs its representations and subjects it to sanctions for unauthorized or false representations, the other defendants need not have voiced their consent to removal before this court. The court rejected this argument.

Rule 11 does not authorize one party to make representations or file pleadings on behalf of another.⁵ Rather, Rule 11 requires that each pleading, motion, or other paper submitted to the court be signed by the party or its attorney of record, if represented. Both Stanley Works and Carolina Door are represented by counsel and clearly are "movants" subject to the requirements of Rule 11. They must file their own signed pleadings. However, the record contains no document, pleading, or motion reflecting their consent to removal and their signatures.

Notwithstanding Food Lion's representations that the other defendants consented to removal, the court concluded that such representations do not satisfy the requirements of section 1446.⁶ The statute requires all defendants, individually, or through their counsel, to voice their consent before the court, not through another party's attorney.⁷ Stanley Works and Carolina Door had ample opportunity to assert to this court their consent to removal. They did not.⁸ Although Stanley Works and Carolina Door never objected to removal, proper removal does not depend on the absence of such objection. Rather, all defendants must affirmatively and unambiguously assert their desire to remove the case to federal court. See Wilkins, No. 90-7155, 1991 WL 68791, at *2 n. 2, 1991 U.S.App.LEXIS 8279, at *4 n. 2. To allow one party, through counsel, to bind or represent the position of other parties without their express consent to be so bound would have serious adverse repercussions, not only in removal situations but in any incident of litigation.⁹ The failure of Stanley Works and Carolina Door to voice consent affirmatively and unambiguously thus prevented this court from determining whether all defendants actually consented to removal.¹⁰ The court, therefore, concluded that their alleged consent, made in Food Lion's notice of removal, was too ambiguous to meet the statutory requirements of 28 U.S.C. § 1446.

II. Remand Order Not Reviewable

Relying on Rule 60(b) of the Federal Rules of Civil Procedure, Food Lion has moved for reconsideration and relief from the court's order to remand this action.¹¹ Creekmore, however, contends that remand orders are unreviewable. First, the statute specifically precludes review: "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d) (1973). The Fourth Circuit clearly has interpreted the statute to preclude review:

The prohibition against further consideration of the remand order is found in the plain language of 28 U.S.C. § 1447(d) which commands that an order "remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise * * *" (Emphasis added) This proscription against review was recognized by the Court in Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977), and by our court in Sullivan v. Simons, 337 F.2d 239 (4th Cir.1964). Unquestionably, the statute not only forecloses appellate review, but also bars reconsideration of such an order by the district court. ... "Both are foreclosed; nothing could be more inclusive than the phrase `on appeal or otherwise.'"

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