Ogletree v. Barnes

• Decision Date: 29 April 1994
• Docket Number: Civ. A. No. 94-1278.
• Citation: 851 F. Supp. 184
• Parties: Calvin OGLETREE, III, Plaintiff, v. Amos BARNES, D.M.D., et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

851 F. Supp. 184

Calvin OGLETREE, III, Plaintiff, v. Amos BARNES, D.M.D., et al., Defendants.

Civ. A. No. 94-1278.

United States District Court, E.D. Pennsylvania.

April 29, 1994.

Joseph F. Bouvier, Mattioni, Mattioni & Mattioni, Ltd., Philadelphia, PA, for plaintiff Calvin Ogletree, III.

Gary V. Gittleman, Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, Philadelphia, PA, for defendant Amos Barnes, D.M.D.

Kathleen Chancler, Jonathan B. Sprague, Post & Schell, PC., Philadelphia, PA, for defendant Audrey Wright.

Lek Domni, Asst. City Sol., Philadelphia, PA, for defendants City of Philadelphia, Richard Neal, Police Com'r, Charles Lorenz, Lieutenant, Edward Sasse, Sergeant, City of Philadelphia Police Dept., Mitchell Yanak, Captain, Bruce Mays, Lieutenant, City of Philadelphia — 16th Police Dist.

John O.J. Shellenberger, III, Office of Atty. Gen., Philadelphia, PA, for defendants PA Bd. of Probation and Parole, and Anthony DiBernardo, Eugene Harnak and Steven Mittan, Parole Supervisors, PA Bd. of Probation & Parole.

MEMORANDUM AND ORDER

YOHN, District Judge.

Pending before the court is plaintiff's motion to remand this action to the Philadelphia County Court of Common Pleas. For the reasons discussed herein, his motion will be granted.

BACKGROUND

On January 14, 1994, plaintiff Calvin Ogletree, III, formerly employed by the City of Philadelphia as a police officer, instituted this action in the Philadelphia County Court of Common Pleas against twelve defendants: Amos Barnes, plaintiff's dentist; Audrey Wright, Barnes' assistant; the City of Philadelphia and five individual members of the Philadelphia Police Department — Police Commissioner Richard Neal, Captain Mitchell Yanak, Lieutenants Charles Lorenz and Bruce Mays, and Sergeant Edward Sasse (hereinafter collectively referred to as "the City defendants"); the Pennsylvania Board of Probation and Parole ("the Pa. Board"); and three individual members of the Pa. Board — Anthony DiBernardo, Eugene Harnak, and Steven Mittan (collectively "the individual Pa. Board defendants"). The complaint, which asserts a rather sweeping array of claims running the gamut from medical malpractice to civil rights violations pursuant to 42 U.S.C. §§ 1981, 1983, and 1985, defies easy synopsis. Nevertheless, its central premise might perhaps be best described as follows: Barnes (and by extension Wright), motivated by a desire to cover-up his alleged malpractice, and the other defendants, motivated by their purported racial animus against Ogletree, conspired, through an interlocking chain of events, to cause Ogletree's termination as a police officer with the City of Philadelphia and in the process violated a myriad of state and federal laws.

Defendants Barnes and Wright were served on January 24, 1994, the City defendants were served on January 26, 1994, the Pa. Board was served on January 31, 1994, and the individual Pa. Board defendants were allegedly served sometime thereafter.¹ On February 23, 1994, the City defendants filed a timely notice of removal alleging that removal was warranted pursuant to 28 U.S.C. § 1441(b) because the action "concerns and affects claims and rights arising under the Constitution and laws of the United States." (Notice of Removal ¶ 4.) The notice also stated that "all defendants to this action consent to its removal to Federal District Court." (Id. ¶ 7.)

On March 24, 1994 Ogletree filed a timely motion to remand this action to state court on the grounds that (1) the removal procedure was defective because not all of the defendants signed the notice of removal and (2) state law claims predominate over federal claims. Also presently pending before the court are motions to dismiss filed by Barnes, Wright, and the Pa. Board and a motion to quash service or, alternatively, to dismiss filed by the individual Pa. Board defendants. For the reasons discussed below, the court will remand the action on the ground that the removal procedure was defective and therefore does not reach the issue of whether remand is warranted because state law claims predominate. Moreover, because remand terminates this court's jurisdiction over the action, the court will not address the merits of any of the defendants' various motions.

LEGAL STANDARDS

Under 28 U.S.C. § 1446(a), a defendant or defendants desiring to remove any civil action from a state court to a federal district court shall file a notice of removal in the district court signed pursuant to Rule 11 of the Federal Rules of Civil Procedure. The notice of removal must be filed within thirty days after the removing defendant receives the initial pleading setting forth the claim for relief. 28 U.S.C. § 1446(b).² While a motion to remand an action based on a defect in removal procedure must be made within thirty days after the filing of the notice of removal under § 1446(a), if at any time before final judgment it appears that the district court lacks subject matter jurisdiction the action must be remanded. 28 U.S.C. § 1447(c); see also Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1215 (3d Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991). The removal 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 (3d Cir.1990) (citations omitted), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991).

While the removal statute does not explicitly so state, it is well-established that in cases involving multiple defendants all defendants must join in the notice of removal. See Gableman v. Peoria, D. & E. Ry. Co., 179 U.S. 335, 337, 21 S.Ct. 171, 172, 45 L.Ed. 220 (1900); Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900). Under this "rule of unanimity," all defendants must join in the notice of removal or otherwise consent to the removal within the thirty-day period set forth in 28 U.S.C. § 1446(b) in order to perfect removal.³ See Getty Oil, Div. of Texaco, Inc. v. Ins. Co. of North Am., 841 F.2d 1254, 1262-63 (5th Cir.1988); Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.1985); Collins v. American Red Cross, 724 F.Supp. 353, 359 (E.D.Pa. 1989); McManus v. Glassman's Wynnefield, Inc., 710 F.Supp. 1043, 1045 (E.D.Pa.1989); Stokes v. Victory Carriers, 577 F.Supp. 9, 10 (E.D.Pa.1983); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp. 528, 529 (E.D.Pa. 1982); Crompton v. Park Ward Motors, Inc., 477 F.Supp. 699, 701 (E.D.Pa.1979).

This unanimity requirement advances "the congressional purpose of giving deference to a plaintiff's choice of a state forum and of resolving doubts against removal and in favor of remand." See McManus, supra, 710 F.Supp. at 1045 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 871, 85 L.Ed. 1214 (1941)). It does, however, have some exceptions, two of which are potentially relevant here: First, merely nominal parties may be disregarded for removal purposes and need not join in the notice of removal or otherwise consent to the removal. See Thompson v. Louisville Ladder Corp., 835 F.Supp. 336, 337 n. 3 (E.D.Tex.1993); Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 508 n. 4 (E.D.Va.1992); Knowles v. American Tempering Inc., 629 F.Supp. 832, 835 (E.D.Pa.1985). And second, defendants who have not been served with the initial pleadings pursuant to 28 U.S.C. § 1446(b) at the time the notice of removal is filed are also not required to join in the notice of removal or otherwise consent to removal. See Pullman Co. v. Jenkins, 305 U.S. 534, 540-41, 59 S.Ct. 347, 350-51, 83 L.Ed. 334 (1939); Thompson, supra, 835 F.Supp. at 337 n. 3; Creekmore, supra, 797 F.Supp. at 508 n. 4; Moody v. Commercial Ins. Co. of Newark, N.J., 753 F.Supp. 198, 200 & n. 3 (N.D.Tex.1990); Knowles, supra, 629 F.Supp. at 835; see also Lewis, supra, 757 F.2d at 68.

DISCUSSION

Ogletree contends that the removal procedure in this action was defective because only counsel for the City defendants signed the notice of removal. Barnes and Wright counter that the removal statute does not require them to sign the notice of removal; all that is necessary is that they join in or otherwise consent to the removal. While this latter assertion is true insofar as it goes, it nevertheless begs the larger, and more germane, question of what type of act is necessary to evidence joinder in or consent to removal.

Barnes and Wright argue that the representation in the notice of removal that "all defendants to this action consent to its removal to Federal District Court," (Notice of Removal ¶ 7), is sufficient.⁴ Apparently, no district court within the Third Circuit has ever squarely addressed this question.⁵ The Fifth Circuit, however, has held that:

While it may be true that consent to removal is all that is required under section 1446, a defendant must do so itself. This does not mean that each defendant must sign the original petition for removal, but there must be some timely filed written indication from each defendant, or some person or entity purporting to formally act on its behalf in this respect and to have authority to do so, that it has actually consented to such action. Otherwise, there would be nothing on the record to "bind" the allegedly consenting defendant.

Getty, supra, 841 F.2d at 1262 n. 11 (emphasis added).⁶

Not surprisingly, district courts within the Fifth Circuit while not demanding that each defendant actually sign the notice of removal, have required that there be "some timely filed written document from each served defendant or its official representative, indicating that it has consented to removal." Thompson, supra, 835 F.Supp. at 337 n. 3. See also Samuel v. Langham, 780 F.Supp. 424, 427 (N.D.Tex.1992); Luckett v. Harris Hospital-Forth Worth, 764 F.Supp. 436, 442 (N.D.Tex.1991). Likewise, district courts within the Fourth, Sixth, Seventh, and Eleventh Circuits have all endorsed similar requirements.⁷

Two...