McShares, Inc. v. Barry

• Decision Date: 20 August 1997
• Docket Number: No. 97-4055-SAC.,97-4055-SAC.
• Citation: 979 F.Supp. 1338
• Court: U.S. District Court — District of Kansas
• Parties: McSHARES, INC., Plaintiff, v. Donald D. BARRY, Esq.; et al., Defendants.

979 F.Supp. 1338

McSHARES, INC., Plaintiff, v. Donald D. BARRY, Esq.; et al., Defendants.

No. 97-4055-SAC.

United States District Court, D. Kansas.

August 20, 1997.

Thomas M. Bradshaw, Daniel O. Herrington, Armstrong, Teasdale, Schlafly & Davis,

Kansas City, MO, J. Stan Sexton, Hampton, Royce, Engleman & Nelson, Salina, KS, for Plaintiff.

Norman I. Reichel, Arlen L. Tanner, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, for Defendants Donald and Anthony Barry.

Robert G. Martin, II, Richard T. Foster, McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, KS, Norman R. Kelly, Norton, Wasserman, Jones & Kelly, Salina, KS, for Defendants Kohn Swift & Graft, Joseph C. Kohn.

Catherine M. Walberg, Wayne T. Stratton, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, Robert Martin, II, Richard Foster, McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, KS, for Defendant Steven A. Asher.

James D. Griffin, Scott R. Ast, Blackwell, Sanders, Matheny, Weary & Lombardi L.L.P., Overland Park, KS, for Defendant David H. Weinstein.

Catherine M. Walberg, Wayne T. Stratton, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Defendants Barrack Rodos Bacine, Leonard Barrack, Gerald J. Rodos, Daniel E. Bacine, Anthony J. Bolognese.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the plaintiff McShare Inc.'s ("McShares") motion to remand. (Dk.13). The removing defendants, Donald D. Barry and Anthony S. Barry, oppose remand. (Dk.16).

NATURE OF ACTION

In November of 1996, the plaintiff filed a two-count complaint in the District Court of Saline County, Kansas, against eleven defendants. (Dk.1, Attachment). The plaintiff alleges in its complaint that the defendants filed or caused to be filed an action on behalf of Albert City Elevator Company and named McShares, Inc. as a defendant in an amended complaint. The plaintiff further alleges that after a "lengthy jury trial, a unanimous verdict was returned in favor of McShares, Inc. in the U.S. District Court for the District of Kansas at Kansas City, Kansas." (Dk.1, Attachment). Asserting a malicious prosecution count and an abuse of process count, the plaintiff McShares now seeks to recover its costs, expenses, and damages from having defended the earlier action. Id.

PROCEDURAL BACKGROUND

The defendants Donald D. Barry and Anthony S. Barry ("Barrys") filed a notice of removal on March 19, 1997. (Dk.1). The Barrys allege therein that their attorney accepted service on their behalf on or about February 27, 1997, and that they filed the notice of removal within the required thirty-day period after service. The Barrys assert the action is removable, because an essential element to the plaintiff's claim is what constitutes probable cause for bringing a federal anti-trust claim. (Dk.1). The defendant David H. Weinstein filed his written consent to removal on March 24, 1997. (Dk.3). The defendants Barrack, Rodos & Bacine, a general partnership, Leonard Barrack, P.C. and Anthony J. Bolognese filed their consent to removal on April 10, 1997. (Dk.12). The defendants Joseph C. Kohn, Steven A. Asher, and Kohn, Swift & Graf, P.C. filed their written consent to removal on April 14, 1997. (Dk.15).

The plaintiff McShares filed its motion to remand on April 10, 1997, arguing the following alternative grounds for remand: (1) that all defendants have not joined or consented to the removal within thirty days after service on the first-served defendant; (2) that this action does not arise under the Constitution, laws or treaties of the United States; and (3) that the defendants Donald Barry and Anthony Barry were not fraudulently joined to defeat diversity jurisdiction.

In response, the defendant Barrys admit that all defendants did not consent to removal thirty days after service on the first defendant. The Barrys argue that the unanimity of consent doctrine is neither jurisdictional nor statutory, that all defendants filed consents to removal within thirty days of the notice of removal, and that all defendants should have the same thirty-day period as the plaintiffs. Barrys reiterate their position that a malicious prosecution action that arises out of a federal anti-trust action also arises out of federal law for purposes of federal court jurisdiction.

In reply, the plaintiff notes that defendants Gerald Rodos and Daniel Bacine have never consented to removal. The plaintiff further argues that the minority rule cited by the defendant Barrys is not that a defendant has the same thirty-day period to consent as the plaintiff has to seek remand but that a defendant must consent within thirty days from when it was served.

PROCEDURAL OBJECTIONS AND ISSUES

The defendant Barrys filed a surreply on May 8, 1997, without requesting leave of the court. (Dk.21). The plaintiff McShares subsequently filed a motion for leave to file "Surrebuttal in Support of Plaintiff's Motion for Remand or, in the alternative, to Strike Surreply of the Berry (sic) Defendants in Opposition to Plaintiff's Motion to Remand." (Dk.23). The defendants Daniel E. Bacine, P.C. ("Bacine") and Gerald J. Rodos, P.C. ("Rodos") then filed a motion for leave to a file a response to the plaintiff McShares's surrebuttal. (Dk.27).

The rules of this court do not provide for the filing of surreplies. D.Kan. Rule 7.1. The courts in this district do not permit a surreply without leave of the court, Brown v. Security, Benefit Group, 1997 WL 263737, 74 Fair Empl.Prac.Cas. (BNA) 666 (D.Kan., April 24, 1997) (No. 95-4127-SAC); Harnett v. Parris, 925 F.Supp. 1496, 1500 (D.Kan. 1996); see, e.g., Edwards v. Esau Investments, Inc., 1994 WL 606073, at *5 (D.Kan. Oct.31, 1994) (No. 93-4130-DES); Dees v. Vendel, 1994 WL 17951, at *1 (D.Kan. Jan.13, 1994) (No. 91-2482-EEO), and reserve leave for rare circumstances as "where a movant improperly raises new arguments in a reply," E.E.O.C. v. International Paper Co., 1992 WL 370850 (D.Kan. Oct.28, 1992) (No. 91-2017-L). Such rules are not only fair and reasonable, but they assist the court in defining when briefed matters are finally submitted and in minimizing the battles over which side should have the last word.

The defendant Barrys offer no excuse or justification for filing the surreply without leave. They stand on the fact that D. Kan. Rule 7.1 does not prohibit surreplies nor requires leave for their filing. It would be more accurate to say that D. Kan. 7.1 does not mention surreplies. While the defendants want to construe the absence of "surreplies" in D. Kan. Rule 7.1 to their favor, the courts have done otherwise. The court sustains the plaintiff McShares's motion to strike the defendant Barrys' surreply to the extent that the court will disregard it. For this reason, the court denies McShares's alternative request for leave to file a surrebuttal and disregards any submitted surrebuttal. There being no surrebuttal, the court denies the defendant Bacine's and Rodos's request for leave to file a response to McShares's surrebuttal.

LAW GOVERNING REMAND

The relevant procedures for removal are found at 28 U.S.C. § 1446, which provides in pertinent part:

(a) A defendant or defendants desiring to remove any civil action ... shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure....

(b) The notice of 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....

A "defect in the removal procedure" is one of the two grounds for remand specified in 28 U.S.C. § 1447(c). A defect in the removal notice, an untimely removal notice, or any "[f]ailure to comply with the requirements of § 1446(b) constitutes a `defect in removal procedure.'" Page v. City of Southfield, 45 F.3d 128, 131 (6th Cir.1995) (citing In re Continental Casualty Co., 29 F.3d 292, 294 (7th Cir.1994)); see In re Ocean Marine Mutual, 3 F.3d 353, 356 (11th Cir.1993); Maniar v. F.D.I.C., 979 F.2d 782, 785 (9th Cir.1992). A motion to remand based on a procedural defect must be filed within thirty days after the filing of the notice of removal. 28 U.S.C. § 1447(c). The plaintiff's motion to remand is timely.

As a creature of statute, removal comes with statutory procedures and requirements that are mandatory in nature. Lewis v. Rego Co., 757 F.2d 66, 68 (3rd Cir.1985); First Nat. Bank & Trust Co. v. Nicholas, 768 F.Supp. 788, 790 (D.Kan.1991); Cohen v. Hoard, 696 F.Supp. 564, 565 (D.Kan.1988). While these procedural requirements are not jurisdictional in nature, they have been strictly enforced. Spillers v. Tillman, 959 F.Supp. 364, 368 (S.D.Miss. 1997); Cohen v. Hoard, 696 F.Supp. at 566. "[R]emoval statutes `are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3rd Cir.1990) (quoting Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3rd Cir.1987), cert. dismissed, 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988)), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991); see Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.1993) ("Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." (citations omitted)); Cohen v. Hoard, 696 F.Supp. at 565 ("Removal statutes are strictly construed to limit the federal court's authority to that expressly provided by Congress and to protect the states' judicial powers." (citations omitted)). The removing party has the burden to show that removal was properly accomplished. Spillers v. Tillman, 959 F.Supp. at 368; Christian v. College Boulevard Nat. Bank, 795 F.Supp. 370, 371 (D.Kan.1992); First...