Johnson v. Nutrex Research, Inc.

• Decision Date: 26 April 2006
• Docket Number: No. RWT 06-CV-160.,RWT 06-CV-160.
• Citation: 429 F.Supp.2d 723
• Parties: Joe JOHNSON, Plaintiff v. NUTREX RESEARCH, INC., et al., Defendant.
• Court: U.S. District Court — District of Maryland

429 F.Supp.2d 723

Joe JOHNSON, Plaintiff v. NUTREX RESEARCH, INC., et al., Defendant.

No. RWT 06-CV-160.

United States District Court, D. Maryland.

April 26, 2006.

Joe Johnson, Oxon Hill, MD, Pro se.

David A. Seltzer, William G. Gandy, Wilson Elser Moskowitz Edelman and Dicker LLP, Washington, DC, for Defendant Nutrex Research, Inc.

MEMORANDUM OPINION

TITUS, District Judge.

On December 19, 2005, Plaintiff Joe Johnson ("Johnson") filed a complaint in the Circuit Court for Prince George's County, Maryland, alleging that he was injured by a dietary weight loss supplement manufactured by Defendant Nutrex Research, Inc. ("Nutrex") and sold to him by Defendant General Nutrition Corporation ("GNC"). On January 29, 2006, Nutrex removed the suit to this Court based on diversity of citizenship, 28 U.S.C. § 1332. GNC did not join in the notice of removal filed by Nutrex, nor did the notice explain the failure of GNC to join in or consent to removal. Johnson subsequently filed a Motion to Remand, alleging a lack of federal jurisdiction and improper removal. The Court now rules, no hearing being deemed necessary. L.R. 105.6.

Because the removal of a case from state to federal court raises significant federalism concerns, courts strictly construe removal jurisdiction. Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir.1994)(concern for federalism underlies principle that removal statutes are to be strictly construed). Furthermore, because federal courts are courts of limited jurisdiction, "federal courts have reasoned that they should be strictly limited to those cases in which original jurisdiction has been conferred upon them and should not be allowed to denigrate the requirements of the removal statutes to enhance their jurisdiction." Bellone v. Roxbury Homes, Inc., 748 F.Supp. 434 (W.D.Va.1990). See also Mason v. International Business Machines, Inc., 543 F.Supp. 444, 446 (M.D.N.C.1982); Thompson v. Gillen, 491 F.Supp. 24, 26 (E.D.Va.1980). Courts therefore strictly construe the removal statutes, and "if federal jurisdiction is doubtful, a remand is necessary." Mulcahey, 29 F.3d at 151; Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993)(courts should "resolve all doubts about the propriety of removal in favor of retained state court jurisdiction").

As explained below, the Court concludes that the notice of removal in this case is deficient for two reasons.¹ First, it fails to properly allege diversity jurisdiction under 28 U.S.C. § 1332, which provides for federal jurisdiction over civil actions between "citizens of different states" (emphasis added). Second, the notice of removal was not joined in by GNC nor was its consent to removal manifested in a timely manner.

The removal papers filed by Nutrex state only that "[P]laintiff is a resident of the state of Maryland" (emphasis added), and contain no allegations regarding the Plaintiffs citizenship. See Notice at ¶ 5. Although "citizenship" and "residence" may be interchangeable terms in common parlance, for diversity jurisdiction purposes, the existence of citizenship cannot be inferred from allegations of residence alone. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989)("In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the state."); Steigleder v. McQuesten, 198 U.S. 141, 142, 25 S.Ct. 616, 49 L.Ed. 986 (1905)("[I]t has long been settled that residence and citizenship [are] wholly different things within the meaning of the Constitution and the laws defining and regulating the jurisdiction of the circuit courts of the United States; and that a mere averment of residence in a particular state is not an averment of citizenship in that state for the purposes of jurisdiction."); Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660 (4th Cir.1998)(rejecting Defendant's assertion of diversity jurisdiction based only on conclusory assertions of the parties' residence; citing cases). The Defendants' own response concedes that "at this stage of the litigation, defendants are unable to prove plaintiff's `citizenship.'" See Paper No. 13.

The Defendants' failure to allege, and their admission that they cannot prove, Johnson's citizenship is fatal to this Court's ability to hear this case. Although the Defendants appear to suggest that the Court can excuse this deficiency because "[P]laintiff does not [ ] contend, let alone demonstrate, that he is not a Maryland citizen," See Paper No. 13, this suggestion ignores the fact that Johnson is not required to disprove the existence of diversity jurisdiction. Rather, the party seeking removal bears the burden of showing jurisdiction by a preponderance of the evidence. Schwenk v. Cobra Mfg. Co., 322 F.Supp.2d 676, 678 (E.D.Va.2004). See generally 14C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3725 (3d ed. 1998 & 2005 Supp.)(collecting cases). The Defendants have failed to meet this burden because they have not made a showing regarding Johnson's citizenship or otherwise proved federal jurisdiction. This case therefore should be remanded back to the Circuit Court for Prince George's County.

The second deficiency of the Notice of Removal is GNC's failure to join in or consent to the removal in a timely manner. To remove a civil action brought in state court, "a defendant or defendants" must file in the district court "a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal," such notice to be filed "within thirty days after receipt, through service or otherwise, of the initial pleading." 28 U.S.C. § 1446 (2006). In cases involving multiple defendants, most courts require that all defendants join in or consent to the removal petition; the "lack of consent by all defendants presents a failing that cannot be easily excused under [the] strict construction [of removal statutes]." Louth, 40 F.Supp.2d at 783.² See also Aguiar v. Evans, 607 F.Supp. 1418, 1419 (E.D.Va.1985)(citing cases); National Union Fire Insurance Co. of Pittsburgh, Pa. v. Louth, et al., 40 F.Supp.2d 776, 782 (W.D.Va.1999).

Nutrex's Notice of Removal indicates that its first notice of this action was by its receipt³ on December 22, 2005, and that GNC's first notice of this action was by its receipt on December 30, 2005. See Notice at ¶ 4. Both Defendants therefore had notice of this action at the time that Nutrex filed a Notice of Removal on January 19, 2006. However, GNC failed to join in the Notice of Removal or otherwise indicate its consent to removing the action to federal court. Nutrex's Notice of Removal does not explain why GNC did not join Nutrex in removing the case or suggest that GNC for some reason was not required to join in or consent to the removal in a timely manner. This alone makes the removal petition defective. See Egle Nursing Home, 981 F.Supp. at 935 (granting motion to remand when the removal notice failed to state why all defendants did not join in or consent to removal); Brantley v. Vaughan, 835 F.Supp. 258, 260 n. 2 (D.S.C.1993)("A petition for removal is considered defective if it fails to explain why all defendants have not joined therein."); rewer, P-Nut Carter's Fire-works, Inc. v. Carey, 685 F.Supp. 952, 953 (D.S.C.1988)(removal petition must affirmatively explain the absence of codefendant or it is defective).

Defendants minimize this omission, suggesting that this "defect" in the Notice of Removal was cured by GNC joining in the February 7, 2006 Statement Concerning Removal in which it states that it joins in and consents to the removal of this case, See Paper No. 12, and by GNC's joining in the opposition to Plaintiff's Motion to Remand, See Paper No. 13. Defendants correctly note that in certain cases, the Fourth Circuit has permitted amendment of a Notice of Removal to correct a technical defect. See, e.g., Nutter v. New Rents, Inc., 945 F.2d 398, 1991 WL 193490 (4th Cir.1991)(allowing defendants to cure the technical defect of the failure to state the principal place of business of one of the defendants). Although the Defendants have not requested leave to amend the Notice of Removal to correct a defect, their opposition to Plaintiff's Motion to Remand seems to suggest that this Court should view the Defendants' subsequent filings as correcting or amending the original deficient Notice of Removal.

This the Court declines to do. The Defendants never sought to amend their Notice of Removal, and even if they had, it would not be proper here because the failure to file a notice joined by both Nutrex and GNC is not a mere technical defect of the type that courts have permitted a removing defendant to correct after the time for removal has expired. See Louth 40 F.Supp.2d at 783 (refusing to grant defendants' request that they be allowed to cure their failure to file a notice of removal joined by all defendants); Egle Nursing Home, 981 F.Supp. at 935 (granting motion to remand and denying defendant's motion to correct defect by amending its notice of removal to reflect consent of all defendants; "the consent of all defendants to removal is not a mere technicality, but an important part of the burden carried by the party seeking removal jurisdiction."); Unicorn Systems, Inc. v. National Louis University, et al., 262 F.Supp.2d 638 (E.D.Va.2003)(holding that defendants' notice of consent outside of the thirty-day statutory period for removal insufficient to constitute consent to removal under 1446; "to hold otherwise would run counter to the principle of strict construction of removal statutes, and effectively negate the mandatory requirements of 28 U.S.C. 1446"). GNC was in receipt of a copy of the complaint on December 30, 2005, but failed to join in or...