McKinney v. BD. OF TRUSTEES OF MAYLAND COM. COLLEGE

• Decision Date: 21 April 1989
• Docket Number: No. A-C-88-133.,A-C-88-133.
• Citation: 713 F. Supp. 185
• Parties: Ronald McKINNEY, Jean Johnson, Juanita Blake, Pat Phillips, Eugene W. Morgan, Ralph Rice, and Barbara McKinney, Plaintiffs, v. The BOARD OF TRUSTEES OF MAYLAND COMMUNITY COLLEGE, Virginia Foxx, in her official and individual capacity, Richard L. Muri, in his official and individual capacity, Evelyn B. Dobbin, in her official and individual capacity, Frank H. Fox, in his official and individual capacity, Hal G. Harrison, in his official and individual capacity, Fred O. Hughes, in his official and individual capacity, Ted M. McKinney, in his official and individual capacity, J. Ardell Sink, in his official and individual capacity, Bill J. Slagle, in his official and individual capacity, Saxton Hall Smith, in his official and individual capacity, Barbara Timberman, in her official and individual capacity, J. Todd Bailey, in his official and individual capacity, Defendants.
• Court: U.S. District Court — Western District of North Carolina

713 F. Supp. 185

Ronald McKINNEY, Jean Johnson, Juanita Blake, Pat Phillips, Eugene W. Morgan, Ralph Rice, and Barbara McKinney, Plaintiffs, v. The BOARD OF TRUSTEES OF MAYLAND COMMUNITY COLLEGE, Virginia Foxx, in her official and individual capacity, Richard L. Muri, in his official and individual capacity, Evelyn B. Dobbin, in her official and individual capacity, Frank H. Fox, in his official and individual capacity, Hal G. Harrison, in his official and individual capacity, Fred O. Hughes, in his official and individual capacity, Ted M. McKinney, in his official and individual capacity, J. Ardell Sink, in his official and individual capacity, Bill J. Slagle, in his official and individual capacity, Saxton Hall Smith, in his official and individual capacity, Barbara Timberman, in her official and individual capacity, J. Todd Bailey, in his official and individual capacity, Defendants.

No. A-C-88-133.

United States District Court, W.D. North Carolina, Asheville Division.

April 21, 1989.

Margaret Errington & John W. Gresham, Ferguson, Stein, Watt, Wallas, & Adkins, Charlotte, N.C., for plaintiffs.

Michelle Rippon & Philip J. Smith, Van Winkle, Buck, Wall, Starnes & Davis, Asheville, N.C., for defendants.

OPINION AND ORDER

RICHARD L. VOORHEES, District Judge.

THIS MATTER is before the Court on Defendants' Motion for Joinder Of A Necessary Party and Motion to Compel and Plaintiffs' Motion to Remand. The parties have submitted their contentions and the Court now enters its decision on these motions.

Plaintiffs allege the following: They are Democrats who were formerly employees of Mayland Community College in Yancey County, North Carolina. In February 1987, defendant Virginia Foxx, a Republican, took office as President of Mayland. In April 1987, Foxx discharged eleven employees, including the seven plaintiffs here. The seven sought review of their discharges by the Board of Trustees, also Republican-controlled, but the discharges were upheld. Plaintiffs then sued in Yancey County Superior Court. They contend that their discharges were "either because of Plaintiffs' political affiliation, personal malice, or for statements made on matters of public concern." Plaintiffs' Motion To Remand at 3.¹

On May 25, 1988, defendants removed the case to this Court. Plaintiffs subsequently moved for a remand to state court, on the grounds that defendants had not satisfied the procedural requirements of 28 U.S.C. 1446, and that thus the case had not been properly removed. Thorny questions of statutory interpretation, which appear to be new to this district and to this circuit, are raised thereby.

I. SECTION 1446

28 U.S.C. 1446(b), paragraph 1, the main bone of contention in this case, states as follows:

The petition for removal of a civil action or proceeding shall be filed 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 upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If there is only one defendant, this is fairly straightforward: Defendant has thirty days from the time he first officially is notified of the lawsuit to decide to remove to federal court. But difficult problems arise when there is more than one defendant.

1446(b) uses the word, "defendant", singular; but 1441(a), the general removal statute, states that:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

(Emphasis added.) This has been taken to establish that unanimity among multiple defendants is required in all removal situations. Gableman v. Peoria, D. & E.R. Co., 179 U.S. 335, 21 S.Ct. 171, 45 L.Ed. 220 (1900). It does not specifically address the possibility that not all defendants will necessarily be served notice at the same time, and therefore not all will necessarily petition the court simultaneously. Thus it has been left to the courts to decide how to apply Section 1446 in such circumstances.

One possibility is that A, the initial defendant, fails to remove within the thirty-day period. Later on B is served with notice and wishes to remove: he cannot. "If the defendant who was served first fails to remove within thirty days, a subsequently served defendant may not remove even with the first defendant's consent." Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F.Supp. 351, 354 (E.D.Mo.1981) (emphasis added). The reason for this is that the intent of 1446 is "to provide a uniform and definite time for a defendant to remove an action," Haun v. Retail Credit Co., 420 F.Supp. 859, 863 (W.D.Pa.1976). Plaintiff is entitled to know, within a reasonable period, whether he is to be in state or federal court; when the initial defendant fails to petition for removal within the allotted thirty days, he cannot change his mind later on².

But when A does petition for removal within the thirty days, and B is served after the period is over, an exactly opposite situation exists. Section 1448 provides:

In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.

This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case.

(Emphasis added.) In short, once all defendants who are in the case during the thirty-day period (defendant A, in our example) have decided to remove, and the period has expired, removal is complete and federal jurisdiction is perfected. The presumption then is that the case will continue on in the federal court, and this presumption will not be disturbed by the later service of another defendant, unless he specifically requests remand. It is easy to see why this is the rule. If it were otherwise, plaintiffs could frustrate removal in multi-defendant cases by simply delaying service on one of the defendants. (It has been suggested that no prejudice occurs to the defendants when only some, but not all, of them are served; but as will be seen, I believe this view is unrealistic.)

The situation where the courts are in disagreement as to the correct rule is as follows: A is served, and petitions for removal within the thirty-day period. B, also a named defendant, is served later, but within the thirty days. The issue is whether B has thirty days from the time he himself is served to join the removal petition, or must join within thirty days of A's service.

Most of the courts that have considered this question seem to have held that B is bound by the date of A's service. "This court holds that the thirty-day period began when the first defendant received notice that the case had become removable." Varney v. Johns-Manville Corp., 653 F.Supp. 839, 840 (N.D.Cal.1987). "The statutory period begins to run as to all defendants when the first defendant is served." Godman v. Sears, Roebuck & Co., 588 F.Supp. 121 (E.D.Mich.1984). "It is clear that the thirty-day time period for filing a petition for removal commenced as to all defendants ... when the first defendant was served." Schmidt v. Nat'l Organization for Women, 562 F.Supp. 210, 212-13 (N.D.Fla.1983). The Fifth Circuit, the only one that has considered the matter, agrees. "In cases involving multiple defendants, the thirty-day period begins to run as soon as the first defendant is served (provided the case is then removable)." Getty Oil, Div. of Texaco v. Ins. Co. of North Am., 841 F.2d 1254, 1262-63 (5th Cir.1988).

There is contrary authority, however. In Clyde v. Nat'l Data Corp., 609 F.Supp. 216 (D.C.Ga.1985), the case was remanded because "the consent of defendant Todd was not conveyed to the Court in any manner within thirty days of service upon him," Id. at 218 (emphasis added) (clearly implying that had defendant joined the removal petition within thirty days of being served, the case would have remained in federal court). "... All properly joined defendants ... must join in the petition for removal ... And each must file for removal within thirty days from the date on which that particular defendant was served." Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F.Supp. 351, 354 (E.D.Mo.1981) (emphasis added).

It should be noted that there appears to be no case from any of the district courts of the Fourth Circuit addressing the point, notwithstanding that the parties have cited several. McKinney v. Rodney C. Hunt Co., 464 F.Supp. 59 (W.D.N.C.1978) was decided on the basis that one of the defendants had never joined the removal petition; the question of when joinder would have been timely was not reached. Mason v. International Business Machines, Inc., 543 F.Supp. 444 (M.D.N.C.1982) dealt with defendants who had been served on the same day, one of whom admittedly did not join in the removal petition within thirty days; the court clearly gave no thought to the consequences of having defendants served on different days, since the facts did not raise it. And Hubbard v. Union Oil Co. of Calif., 601 F.Supp. 790 (S.D.Va. 1985), dealt with a situation where no removal petition was filed within thirty days after the first defendant was served. Thus this is an issue of first impression.

The Court believes that what is admittedly the minority view, that later-served defendan...