Miller v. Morocho Brother's Construction, Inc., CIVIL No. 1:03CV00924 (M.D.N.C. 3/31/2004)
| Decision Date | 31 March 2004 |
| Docket Number | CIVIL No. 1:03CV00924. |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | GEORGE W. MILLER, Administrator of the Estate of Pedro Zumano Dimas, deceased, Plaintiff, v. MOROCHO BROTHER'S CONSTRUCTION, INC., a Florida corporation; LUIS EDUARDO MOROCHO; PROFESSIONAL PLASTERING AND STUCCO, INC., a Florida corporation; DONNIE KING; and CONTRAVEST CONSTRUCTION COMPANY, a Florida corporation, Defendants. |
Before the court is George W. Miller's ("Plaintiff") motion to remand this civil action to the General Court of Justice, Superior Court Division, Durham County, North Carolina, pursuant to 28 U.S.C. § 1447(c). For the following reasons, Plaintiff's motion to remand will be denied.
On August 22, 2002, Pedro Zumano Dimas, a citizen of Mexico, died while working on a construction project at an apartment complex near Morrisville, North Carolina. On August 4, 2003, Plaintiff, the administrator of Dimas' estate, filed this civil action in the General Court of Justice, Superior Court Division, Durham County, North Carolina, against three construction companies and two individuals allegedly responsible for Dimas' death. Plaintiff's complaint states separate claims for negligence and wrongful death against Morocho Brother's Construction, Inc. ("Morocho Construction"), a Florida corporation with its principal place of business in Orlando, Florida; Luis Eduardo Morocho, the president of Morocho Construction whose domicile and primary residence is in Florida; Professional Plastering and Stucco, Inc. ("Professional Plastering"), a Florida corporation with its principal place of business in Sanford, Florida; Donnie King, the president of Professional Plastering whose domicile and primary residence is in Florida; and Contravest Construction Company ("Contravest Construction"), a Florida corporation with its principal place of business in Lake Mary, Florida (collectively "the named Defendants").
On September 2, 2003, Plaintiff separately served Professional Plastering, Donnie King, and Contravest Construction with summonses and copies of the complaint. On October 1, 2003, Professional Plastering and Donnie King ("the removing Defendants") filed a notice of removal to this court pursuant to 28 U.S.C. § 1332(a)(1) and 1441(a). The removing Defendants apparently did not obtain consent from the other named Defendants before filing their notice of removal because Plaintiff's attorney had advised their attorney that Plaintiff had not yet served any of the other named Defendants and that none of the other named Defendants had retained counsel. (Defs.' Mem. Opp'n Pl.'s Mot. to Remand at 4; Neijna Aff. at 2.) The record does not show that Plaintiff ever properly served Morocho Construction or Luis Eduardo Morocho.
On December 8, 2003, Plaintiff filed a motion to remand this civil action to the General Court of Justice, Superior Court Division, Durham County, North Carolina. According to Plaintiff's motion to remand, "the failure of all the [named] Defendants to join in the Notice of Removal is fatal to removal, and requires that the case be remanded to North Carolina state court." (Pl.'s Mot. to Remand at 1-2.) The removing Defendants oppose Plaintiff's motion to remand as untimely based on the provisions of 28 U.S.C. § 1447(c). (See Defs.' Mem. Opp'n Pl.'s Mot. Remand at 4.)1
"The right to remove a case from state to federal court derives solely from 28 U.S.C. § 1441 [.]" Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994) (citing 28 U.S.C. § 1441(a)). "Section 1441(a) of Title 28 permits a defendant to remove from state to federal court `any civil action brought in a state court of which the district courts of the United States have original jurisdiction.'" Triad Motorsports, LLC v. Pharbco. Marketing Group, Inc., 104 F. Supp.2d 590, 593 (M.D.N.C. 2000)(citing 28 U.S.C. § 1441(a)). Actions over which federal courts have diversity jurisdiction "shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b). "Because removal jurisdiction raises significant federalism concerns, [courts] must strictly construe removal jurisdiction." Mulcahey, 29 F.3d at 151 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)).
"The existence of subject matter jurisdiction is a threshold issue, and absent a proper basis for subject matter jurisdiction, a removed case must be remanded to state court." Keith v. Clarke Am. Checks. Inc., 261 F. Supp.2d 419, 421 (W.D.N.C. 2003) (). On a motion to remand, the burden of establishing federal subject matter jurisdiction rests on the party or parties seeking to preserve removal. Morales v. Showell Farms, Inc., 910 F. Supp. 244, 246 (M.D.N.C. 1995)(citing Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994)); see also 14C Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3739, at 423-24 (3d ed. 1990)("It is also well-settled under the case law that the burden is on the party seeking to preserve the district court's removal jurisdiction, . . . not the party moving for remand to state court, . . . to show that the requirements for removal have been met.")
"[W]hether an action should be remanded to state court must be resolved by the district court with reference to the complaint, the notice of removal, and the state court record at the time the notice of removal was filed." Wright, Miller, and Cooper, supra, at 468. In the instant case, the removing Defendants' notice of removal alleges that the court has original jurisdiction of this civil action pursuant to 28 U.S.C. § 1332(a)(2).2 Neither Plaintiff nor the removing Defendants dispute that complete diversity exists between Plaintiff and the named Defendants or that the amount in controversy exceeds $75,000. Based on Plaintiff's complaint and the removing Defendants' notice of removal, the court finds that the requirements for diversity jurisdiction under 28 U.S.C. § 1332(a)(2) are satisfied.3
Although the court has original jurisdiction over this civil action pursuant to 28 U.S.C. § 1332(a)(2), Plaintiff contends that the court lacks subject matter jurisdiction because all the named Defendants failed to join in the removing Defendants' notice of removal. "Section 1447(c) of Title 28 provides that a case removed to federal court must be remanded to state court if [at any time before final judgment] it appears that the federal court lacks subject matter jurisdiction[.]" Borneman v. United States, 213 F.3d 819, 824 (4th Cir. 2000)(citing 28 U.S.C. § 1447(c)), cert. denied, 531 U.S. 1070 (2001). "A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447 (c). Plaintiff filed his motion to remand over two months after the removing Defendants filed their notice of removal. Therefore, the issue presented by Plaintiff's motion to remand is whether the failure of all the named Defendants to join in or otherwise consent to the removing Defendants' notice of removal qualifies as a defect in removal other than lack of subject matter jurisdiction for purposes of 28 U.S.C. § 1447(c).
28 U.S.C. § 1446 sets forth the procedure for removal, which a defendant or multiple defendants must follow in order to remove a civil action from state court to federal court. Section 1446(a) of Title 28 provides that "[a] defendant or defendants desiring to remove any civil action . . . from a State court shall file in [federal] 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[.]" 28 U.S.C. § 1446 (a). "A proper filing of a notice of removal immediately strips the state court of its jurisdiction." Yarnevic v. Brink's. Inc., 102 F.3d 753, 754 (4th Cir. 1996) ().
Courts have uniformly ruled that the phrase "a defendant or defendants" in 28 U.S.C. § 1446(a) requires all defendants in a civil action to join in or otherwise consent to a notice of removal filed under 28 U.S.C. § 1441(a). See Freeman v. Bechtel, 936 F. Supp. 320, 324-25 (M.D.N.C. 1996)(citing Gableman v. Peoria, Decatur & Evansville Ry. Co., 179 U.S. 335 (1900); Perpetual Bldg. & Loan Ass'n v. Series Directors of Equitable Bldg. & Loan Ass'n. Series No. 52, 217 F.2d 1 (4th Cir. 1954), cert. denied., 349 U.S. 911 (1955); Folts v. City of Richmond, 480 F. Supp. 621, 624-25 (E.D. Va. 1979); and Adams v. Aero Servs. Int'l. Inc., 657 F. Supp. 519, 521 (E.D. Va. 1987)). "This `rule of unanimity,' as it is referred to, does not require all of the defendants to sign the notice of removal; however, it does require that each defendant officially and unambiguously consent to the notice of removal." Parker v. Johnny Tart Enters., Inc., 104 F. Supp.2d 581, 583-84 (M.D.N.C. 1999) (). "[U]nder 28 U.S.C. § 1446(b), individual defendants have thirty days from the time they are served with process or with a complaint to join in [or consent to] an otherwise valid removal petition." McKinney v. Bd. of Trs. of Maryland Cmty. Coll., 955 F.2d 924, 928 (4th Cir. 1992).
Many courts have concluded that the failure of all defendants to join in or otherwise consent to...
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