Doe v. Partners

• Decision Date: 25 February 2021
• Docket Number: Civil Action No. 20-cv-3759 (BAH)
• Parties: JOHN DOE, Plaintiff, v. DAVERSA PARTNERS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

JOHN DOE, Plaintiff, v. DAVERSA PARTNERS, et al., Defendants.

Civil Action No. 20-cv-3759 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 25, 2021

Chief Judge Beryl A. Howell

MEMORANDUM OPINION AND ORDER

Plaintiff John Doe, a citizen and resident of the State of New York, commenced this employment discrimination action against his former employer, defendant Daversa Partners and Resource Systems Group Inc. t/a Daversa Partners ("Daversa"), a citizen of the State of Connecticut, and defendant Bruce Brown ("Brown"), a citizen and resident of Washington, D.C., in the Superior Court for the District of Columbia ("Superior Court") on December 17, 2020. See Not. Removal ¶¶ 2-3 (citing Attach. 1, Compl. ¶¶ 4, 8-9, ECF No. 1-1), ECF No. 1.¹ Two days after the suit was filed in Superior Court and prior to service being effected, defendants, including forum-defendant Brown, removed the case to federal district court. See Not. Removalat 1, ECF No. 1.² Plaintiff now moves to remand this case to Superior Court, pursuant to 28 U.S.C. § 1447(c), on grounds that defendants' pre-service removal, filed "immediately after [the] state court action [was] filed . . . before [] plaintiff ha[d] a chance of effectuating service," is procedurally defective and violates the forum-defendant rule codified in 28 U.S.C. § 1441(b)(2). See Pl.'s Mot. Remand ("Pl.'s Mot.") at 1, ECF No. 5.³ For the reasons provided below, the motion to remand is denied.

I. BACKGROUND

Only the factual and procedural background relevant to resolving the pending motion for remand are summarized. For eleven months, from July 8, 2019 until July 9, 2020, Compl. ¶¶ 21, 73-78, plaintiff worked as a full-time consultant for Daversa in Washington, D.C., and was supervised by defendant Brown, a partner at Daversa, id. ¶ 21. Plaintiff alleges that Brown subjected him to "special treatment," which began as individual meetings and rides, id. ¶¶ 26-29, and escalated to nonconsensual sexual conversations, text messages and touching, id. ¶¶ 30, 36-48, 54-55, 65-67. Despite plaintiff's rejections of sexual overtures, Brown persisted in unwanted nonconsensual touching of plaintiff, id. ¶ 43, including grabbing plaintiff's genitals and commenting on his penis size during a car ride, id. ¶¶ 36-48, and other nonconsensual contacts on business trips, id. ¶¶ 54-55. Plaintiff now seeks compensatory, punitive and exemplary damages amounting to $20,000,000 on his claims of discrimination, harassment, assault, negligence, wage theft and intentional infliction of emotional distress, under the District of Columbia Human Rights Act, D.C. Code § 2-1401.01 et seq., the D.C. Wage Payment andWage Collection Law ("DCWPWCL"), D.C. Code 32-1301, et seq., and the common law of the District of Columbia. Id. ¶¶ 93-187.

Before initiating this lawsuit, the parties engaged in an unsuccessful mediation, thereby alerting defendants that plaintiff could file a suit as early as December 16, 2021. Pl.'s Mem. Supp. Mot. Remand ("Pl.'s Mem."), Attach. A, Decl. of Carla D. Brown, Esq. ¶¶ 5-6, ECF No. 5-1. Two days after the lawsuit was filed, on Thursday, December 17, 2020, see Not. Removal, Attach. 3, Civil Division - Civil Actions Branch Information Sheet at 1, ECF No. 1-3, and before the Superior Court clerk had issued the summonses required for plaintiff to effectuate service, see Pl.'s Mem. at 11, ECF No. 5, defendants removed the action to this Court, pursuant to 28 U.S.C. § 1441 et seq., on Saturday, December 19, 2020, Not. Removal at 1. Plaintiff promptly moved to remand this action, on January 6, 2021, Pl.'s Mot. at 1, which motion became ripe for resolution on January 26, 2021.

II. LEGAL STANDARD

"[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction[] may be removed by . . . the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "When it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case . . . , and the court's order remanding the case to the state court whence it came 'is not reviewable on appeal or otherwise.'" Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (citing 28 U.S.C. § 1447(c) and quoting id. § 1447(d)); see also Kircher v. Putnam Funds Tr., 547 U.S. 633, 640 (2006) (noting "[t]he policy of Congress oppos[ing] interruption of the litigation of the merits of a removed cause by prolonged litigationof questions of jurisdiction of the district court to which the cause is removed," resulting in statutes that "have accordingly limited the power of federal appellate courts to review orders remanding cases removed by defendants from state to federal court" (internal quotation marks and citation omitted) (citing 28 U.S.C. § 1447(d))). Due to the statutory prohibition of appellate review of remanded cases, the legal standard for removal has largely been developed in the district courts.

Defendants seeking the exercise of federal court jurisdiction over a removed case "bear[] the burden of pleading" the basis for jurisdiction. Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 906 (D.C. Cir. 2006) (internal quotation marks and citation omitted); Apton v. Volkswagen Grp. of Am., Inc., 233 F. Supp. 3d 4, 11 (D.D.C. 2017). Absent such a showing, a "court must remand the case." Johnson-Brown v. 2200 M Street LLC, 257 F. Supp. 2d 175, 177 (D.D.C. 2003) (citing 28 U.S.C. § 1447(c)).

After removal, a party may make a "motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction" within "30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c). "In light of the significant federalism concerns involved, this court 'strictly construes the scope of its removal jurisdiction,'" RGI Events & Pub. Rels., LLC v. Al Qurm Mgmt. Consultancy, Civil Action No. 18-1828 (BAH), 2019 U.S. Dist. LEXIS 29762, at *4-5 (D.D.C. Feb. 26, 2019) (quoting Moses v. SunTrust Mortg., Inc., No. 11-cv-00822 (BJR), 2012 U.S. Dist. LEXIS 4342, 2012 WL 113375, at *2 (D.D.C. 2012) (quoting Breakman v. AOL LLC, 545 F. Supp. 2d 96, 100 (D.D.C. 2008))), resolving "any ambiguities concerning the propriety of removal in favor of remand," Animal Legal Def. Fund v. Hormel Foods Corp., 249 F. Supp. 3d 53, 56 (D.D.C. 2017) (internal quotation marks omitted) (quoting Johnson-Brown, 257 F. Supp. 2d at 177).

III. DISCUSSION

The parties do not dispute that this Court has subject matter jurisdiction over this action, as the parties are completely diverse and the amount in controversy is over $75,000. See Pl.'s Mem. at 16; Brown's Opp'n at 1; Daversa's Opp'n at 4-5; see also 28 U.S.C. § 1332(a). Plaintiff seeks remand, pursuant to 28 U.S.C. § 1447(c), on grounds that defendants' pre-service "snap removal" was defective by (1) violating the forum-defendant rule, 28 U.S.C. § 1441(b)(2), and (2) impermissibly effectuating removal before "at least one defendant named in the suit [was] served." Pl.'s Mem. at 13-14. While the parties may debate the policy implications of snap removals, the plain text of the applicable statute governs and permits the removal that occurred here. Each of plaintiff's purported defects are addressed seriatim.

A. Snap Removal Is Permissible Under 28 U.S.C. § 1441(b)(2)

Plaintiff contends that "no removal is possible when one of the defendants is a citizen of the state in which suit is brought." Pl.'s Mem. at 18. Removal of cases to federal court is governed by 28 U.S.C. § 1441, which generally bars removal of diversity jurisdiction cases when "any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id. § 1441(b)(2).⁴ This "forum-defendant rule" was added to the removal statute in 1948 to address the perceived problem of plaintiffs defeating diversity jurisdiction and removal to federal court by suing a nominal in-state defendant, who was never served with process or otherwise pursued in the litigation. See Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 153 (3d Cir. 2018) ("[C]ourts and commentators have determined that Congress enacted the rule 'to prevent a plaintiff from blocking removal byjoining as a defendant a resident party against whom it does not intend to proceed, and whom it does not even serve.'" (quoting Arthur Hellman, et al., Neutralizing the Strategem of "Snap Removal": A Proposed Amendment to the Judicial Code, 9 FED. CTS. L. REV. 103, 108 (2016) (quoting Sullivan v. Novartis Pharms. Corps., 575 F. Supp. 2d 640, 645 (D.N.J. 2009)); Hawkins v. Cottrell, Inc., 785 F. Supp. 2d 1361, 1377-78 (N.D. Ga. 2011) (same); see also Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 706 (2d Cir. 2019) (concluding that allowing defendant that has not been served to remove to federal court "'does not contravene' Congress's intent to combat fraudulent joinder" (quoting Encompass Ins., 902 F.3d at 153)).

Although framed as a prohibition on removal, § 1441(b)(2) operates to permit an out-of-state defendant to remove a diversity case when the in-state defendant has not been served. As written, the plain language of this statutory provision only bars removal when a forum-defendant has been properly joined and served. Absent such joinder and service on a forum-defendant, as here, the statutory bar on removal in § 1441(b)(2) simply does not apply. Defendants are thus correct that § 1441(b)(2) only bars removal if any of the defendants in interest are both properly joined and served and citizens of the state in which the action is brought. Brown's Opp'n at 3; Daversa's Opp'n at 7. Here, only one of the requirements was met: while Brown fulfills the second requirement, plaintiff concedes that "Brown had not been served at the time of the removal."...