Ferrell v. Young

• Decision Date: 22 July 2013
• Docket Number: No. A13A0560.,A13A0560.
• Citation: 746 S.E.2d 167,323 Ga.App. 338
• Parties: FERRELL v. YOUNG.
• Court: Georgia Court of Appeals

323 Ga.App. 338

746 S.E.2d 167

FERRELL

v.YOUNG.

No. A13A0560.

Court of Appeals of Georgia.

July 5, 2013.

Reconsideration Denied July 22, 2013.

Adam Lowell Appel, Megan Elizabeth Boyd, Atlanta, for Appellant.

Michael Dexter Harper, Atlanta, for Appellee.

ANDREWS, Presiding Judge.

Brandon Young filed suit in the Fulton County Superior Court against the Georgia World Congress Center Authority (GWCCA); the Chief of the GWCCA police department; and officer Twyone Ferrell of the GWCCA police department alleging that, after Ferrell arrested him at the GWCCA for possession of a stolen cell phone, Ferrell fondled his penis and forced him to commit non-consensual sex acts. Young alleged that Ferrell acted within the scope of his employment as a GWCCA police officer, and sued Ferrell in his individual capacity asserting causes of action under state law and pursuant to 42 U.S.C. § 1983 for violation of federal rights.¹

Ferrell appeals from the Superior Court's order granting a default judgment against him for failing to file a timely answer, and denying his motion to open the default. As to Young's claim brought against Ferrell, individually, pursuant to 42 U.S.C. § 1983, we find that the Court correctly concluded Ferrell was in default for failing to timely answer. But we vacate the default judgment and the order denying Ferrell's motion to open default, and remand the case for reconsideration of the motion. As to Young's claim brought against Ferrell, individually, under state law, we vacate the grant of the default judgment and remand with direction to dismiss the claim-as a police officer employed by the GWCCA, Ferrell was immune from suit on this claim under OCGA § 50–21–25(a) and (b), and therefore the Court had no subject matter jurisdiction.

1. Young's complaint included a cause of action against Ferrell in his individual capacity, brought pursuant to 42 U.S.C. § 1983, seeking to impose personal liability for damages for violation of federal rights based on alleged actions Ferrell took in his official capacity as a GWCCA police officer. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). ² “ Section 1983 provides judicial remedies to a claimant who can prove that a person acting under color of state law committed an act that deprived the claimant of some right, privilege, or immunity protected by the Constitution or laws of the United States.” Romano v. Ga. Dept. of Corrections, 303 Ga.App. 347, 351, 693 S.E.2d 521 (2010) (punctuation and citation omitted). As to this cause of action, the Superior Court correctly concluded that Ferrell was in default because his answer was untimely.

Young filed his complaint in the Superior Court in June 2009, and Ferrell was served on July 23, 2009. After the GWCCA and Shannon were served and filed answers, the case was timely removed to the United States District Court by a notice of removal filed on August 4, 2009. 28 U.S.C. § 1446. On August 19, 2009, Ferrell, who did not file an answer before removal, filed an untimely motion to dismiss for failure to state a claim in the District Court. Fed.R.Civ.P. 81(c)(2). Without ruling on the motion, the District Court sua sponte remanded the case to the Superior Court on May 17, 2011, for lack of subject matter jurisdiction. 28 U.S.C. § 1447(c). On May 19, 2011, the GWCCA and Shannon moved in the District Court for reconsideration of the remand, and on June 21, 2011, the District Court denied the motion for reconsideration. On June 22, 2011, the GWCCA and Shannon appealed the remand to the Eleventh Circuit Court of Appeals, and on February 21, 2012, the Eleventh Circuit dismissed the appeal. On March 13, 2012, the GWCCA and Shannon moved in the Eleventh Circuit for reconsideration of the dismissal, and on June 21, 2012, the Eleventh Circuit denied the motion for reconsideration. On June 29, 2012, Ferrell filed an answer to Young's complaint in the Superior Court. On July 3, 2012, Young moved in the Superior Court for entry of default judgment against Ferrell pursuant to OCGA § 9–11–55 for failure to timely file an answer. On July 3, 2012, Ferrell filed a motion in the Superior Court asking the Court to open default, if any, but also contending that his answer was timely and that he was not in default. The Superior Court entered an order on August 20, 2012, (1) granting a default judgment against Ferrell pursuant to OCGA § 9–11–55(a) on the basis that he failed to timely file an answer and was in default for more than 15 days, and (2) denying Ferrell's motion to open default pursuant to OCGA § 9–11–55(b).

(a) Ferrell was served with the complaint on July 23, 2009, giving him 30 days under OCGA § 9–11–12(a) to file an answer. When the notice of removal to the District Court was filed on August 4, 2009, the Superior Court lost jurisdiction until the case was remanded by the District Court. 28 U.S.C. § 1446; Cotton v. Fed. Land Bank of Columbia, 246 Ga. 188, 189, 269 S.E.2d 422 (1980). When the case was removed, only a portion of the 30–day period for filing an answer in the Superior Court had expired. Until the Superior Court resumed jurisdiction pursuant to the remand from the District Court, no responsive pleadings could be filed in the Superior Court, and the running of the 30–day period for filing an answer in the Superior Court was suspended. Allen v. Hatchett, 91 Ga.App. 571, 576–577, 86 S.E.2d 662 (1955). When the District Court remanded the case to the Superior Court on May 17, 2011, “the case stood as it did at the time of removal,” and the remaining portion of the 30–day period for filing an answer in the Superior Court commenced to run. Id. at 577, 86 S.E.2d 662. The trial court correctly found that Ferrell's answer was untimely and that he was in default under OCGA § 9–11–55(a) because he filed the answer in the Superior Court on June 29, 2012, over a year after the case was remanded and long after the recommenced 30–day answer period had expired.

(b) Ferrell contends that his motion to dismiss for failure to state a claim, filed in the District Court after removal but never ruled on, prevented the Superior Court from entering the default judgment. Fed.R.Civ.P. 81(c)(2). “[A] timely answer filed in district court following timely removal of the action is sufficient to prevent a default in a state court if the case is subsequently remanded from district court.” Teamsters Local 515 v. Roadbuilders, Inc., etc., 249 Ga. 418, 421, 291 S.E.2d 698 (1982), overruled in part on other grounds, Shields v. Gish, 280 Ga. 556, 557, 629 S.E.2d 244 (2006). Under Fed.R.Civ.P. 81(c), where an action has been removed from state court to federal court, and the defendant has not filed an answer prior to removal, the defendant “must answer or present other defenses or objections under these rules within the longest of these periods:” (1) within 21 days after receiving, by service or otherwise, a copy of the initial pleading stating the claim for relief; (2) within 21 days after being served with summons on such initial pleading on file at the time of service; or (3) within 7 days after the notice of removal is filed. After the case was removed, Ferrell failed to file any pleading in District Court within the time required by Fed.R.Civ.P. 81(c). Even assuming that an undisposed motion to dismiss for failure to state a claim (see Fed.R.Civ.P. 12(a)(4)(A)), which was timely filed under Fed.R.Civ.P. 81(c) after removal, could prevent default in state court if the case is subsequently remanded, we find that Ferrell's untimely motion was not sufficient to prevent default.

(c) Ferrell contends that the remaining portion of the 30–day period for filing an answer in Superior Court commenced to run, not when the District Court remanded the case to the Superior Court on May 17, 2011, but after the conclusion of the post-remand motion asking the District Court to reconsider the remand, and the appeal asking the Eleventh Circuit to reverse the remand. Accordingly, Ferrell contends that, when the Eleventh Circuit denied the motion to reconsider its dismissal of the appeal on June 21, 2012, the remaining portion of the 30–day period for filing an answer in Superior Court commenced to run, and he timely filed the answer on June 29, 2012.

Under 28 U.S.C. § 1447(d), entitled “Procedure after removal generally,” “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” Section 1447(d), which applies only to remand orders under § 1447(c) for lack of subject matter jurisdiction, “not only forecloses appellate review, but also bars reconsideration by the district court of its own remand order.” Bender v. Mazda Motor Corp., 657 F.3d 1200, 1203 (11th Cir.2011) (punctuation and citation omitted). “A remand to state court divests a district court of jurisdiction such that it may not take any further action on the case,” even if the remand order was erroneous, and vests jurisdiction in the state court to “ thereupon proceed with such case.” Id. at 1203–1204 (punctuation and citation omitted); 28 U.S.C. § 1447(c). Because neither the District Court nor the Eleventh Circuit had jurisdiction to review the May 17, 2011 remand order vesting jurisdiction in the Superior Court, the remaining portion of the 30–day period for filing an answer in Superior Court commenced to run from the date of remand. Penland v. Corlew, 248 Ga.App. 564, 569, 547 S.E.2d 306 (2001). Ferrell's answer filed on June 29, 2012 was untimely.

(d) Ferrell contends that the Superior Court erred by denying his motion to open the default on Young's claim against him, individually, pursuant to 42 U.S.C. § 1983. By failing to file an answer before expiration of the 30–day period after service, Ferrell became automatically in default, and thereafter failed to open default as a matter of right by filing defenses within 15 days of the default with payment of costs. OCGA § 9–11–55(a). Accordingly, Young became entitled...