Parker v. County of Oxford, CIV.02-136-P-C.

• Citation: 224 F.Supp.2d 292
• Decision Date: 09 October 2002
• Docket Number: No. CIV.02-136-P-C.,CIV.02-136-P-C.
• Parties: Harold PARKER, III, Plaintiff v. COUNTY OF OXFORD, et al, Defendants
• Court: U.S. District Court — District of Maine

Page 292

224 F.Supp.2d 292

Harold PARKER, III, Plaintiff v. COUNTY OF OXFORD, et al, Defendants

No. CIV.02-136-P-C.

United States District Court, D. Maine.

October 9, 2002.

Paul F. Macri, William D. Robitzek, Berman & Simmons, P.A., Lewiston, ME, for Plaintiff.

Peter T. Marchesi, Esq., Wheeler & Arey, P.A., Waterville, ME, Michael E. Saucier, Esq., Thompson & Bowie, Portland, ME, Charles W. Hodsdon, II, Bangor, ME, for Defendants.

MEMORANDUM OF DECISION AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND

GENE CARTER, District Judge.

Now before the Court is Plaintiff's petition to remand this action to the Maine Superior Court. Motion for Remand and Incorporated Memorandum (Pleading No. 2). Defendants have filed briefs in opposition to the Motion to Remand. Defendant Oxford County's Objection to Plaintiff's Motion for Remand with Incorporated Memorandum of Law (Pleading No. 3) and Town of Rumford Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Remand (Pleading No. 4).

FACTS

This action was originally filed in the Maine Superior Court on December 10, 2001; an Amended Complaint was filed on February 27, 2002, and Defendants were served with the Complaint that same day.¹ On March 12, 2002, Defendant County of Oxford's attorney, Peter Marchesi, and Defendant Town of Rumford's attorney, Michael Saucier, each spoke separately with Charles Hodson, the attorney for Defendant Larkin Enterprises. In their conversations, attorneys Marchesi and Saucier expressed their desire to remove the case to federal court. Attorney Hodson indicated to both attorneys that Defendant Larkin Enterprises did not consent to such removal. See Affidavit of Peter T. Marchesi, Esq. attached to County of Oxford's Brief (Pleading No. 3) at ¶ 5, and Affidavit of Michael E. Saucier, Esq. attached as Defendant's Exhibit A to Town of Rumford's Brief (Pleading No. 4) at ¶ 6. On June 4, 2002, Defendant Town of Rumford received a copy of a Stipulation of Dismissal signed by Plaintiff's Counsel on May 28, 2002, indicating that Defendant Larkin Enterprises had been dismissed from the case.² See Saucier Affidavit at ¶ 7. On June 18, 2002, Defendants filed a Notice of Removal with this Court pursuant to 28 U.S.C. § 1446, citing this Court's original jurisdiction, under 28 U.S.C. § 1331, of claims arising under the Constitution of the United States.³ Plaintiff then filed the instant Motion for Remand.

The question for this Court to determine is whether Defendants are barred by the thirty-day time limit on removal set forth in 28 U.S.C. § 1446(b),⁴ given that they received notice of the claim against them on February 27, 2002, and did not file their Notice of Removal until June 18, 2002. This question generates the issue of when the thirty-day time limit began to run and, therefore, when this case became "removable."

DISCUSSION

Under 28 U.S.C. § 1441(b), "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable ...." Plaintiff's Complaint, which alleges the violation of his Fourth Amendment rights, is therefore a civil action that, on its face, is removable. However, this does not mean that the case can in fact be removed. It is well-settled law that a case may not be removed to federal court unless all defendants consent to removal. See, e.g., Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); see also Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1044 (11th Cir.2001); Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants' Local 349, 427 F.2d 325, 326-27 (5th Cir.1970); Gibson v. Inhabitants of Town of Brunswick, 899 F.Supp. 720, 721 (D.Me.1995); Garside v. Osco Drug, Inc., 702 F.Supp. 19, 21 (D.Mass.1988); Gorman v. Abbott Laboratories, 629 F.Supp. 1196, 1199 (D.R.I.1986). The failure of a defendant to join in a petition for removal has been found fatal to such removal and, has resulted in remand to the state court. See, e.g., Santa Rosa Medical Center, Inc. v. Converse of Puerto Rico, Inc., 706 F.Supp. 111 (D.P.R.1988); Hess v. Great Atlantic & Pac. Tea Co., Inc., 520 F.Supp. 373 (N.D.Ill.1981); Adams v. Aero Services Intern., Inc., 657 F.Supp. 519 (E.D.Va.1987); Miles v. Kilgore, 928 F.Supp. 1071 (N.D.Ala.1996).

In the context of federal question jurisdiction, therefore, there are two conditions precedent to a case being removed to federal court: (1) existence of a federal question and (2) the consent of all defendants. The Complaint in this case clearly states a federal question; however, initially all Defendants did not consent to removal. Absent such consent the case was not removable to federal court. It did not become removable until the nonconsenting Defendant was dismissed from the case. The second paragraph of § 1446(b) reads:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

(Emphasis added).

The words "other paper" in the above-quoted provision have been broadly interpreted by courts and has allowed for a wide array of documents to serve as a trigger commencing a new thirty-day period for previously unremovable cases that become removable. See 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE: Jurisdiction 3d § 3732 (1998). "Other paper" that has signified the newfound removability of a case and initiated the thirty-day period includes letters from opposing counsel, correspondence between parties, affidavits, proposed jury instructions, answers to interrogatories, motions for summary judgment, and documents produced in discovery. See, e.g., Miller v. BAS Tech. Employment Placement Co., 130 F.Supp.2d 777 (D.W.Va.2001) (first defendant's motion for summary judgment was "other paper," the filing of which provided notice to second defendant that the action was removable under diversity jurisdiction on basis that nondiverse defendant was fraudulently joined); Hines v. AC & S, Inc., 128 F.Supp.2d 1003 (N.D.Tex.2001) (noting that "other paper" can include answers to interrogatories, responses to requests for admissions, deposition testimony, and documents produced in discovery); Polk v. Sentry Ins., 129 F.Supp.2d 975 (D.Miss.2000) (letter between attorneys confirming that plaintiff's dismissal of nondiverse defendants was voluntary is "other paper" sufficient to trigger time to remove).

In Hessler v. Armstrong World Indus., Inc., 684 F.Supp. 393 (D.Del.1988), the court found that the thirty-day period began to run when the defendants received notice, by letters from opposing counsel and by statements made in state court that the nondiverse defendants had settled with the plaintiffs. These letters signified to counsel that the once nonremovable case had now become removable.⁵ Similarly, the receipt by Defendants in the instant case of a copy of the signed transmittal letter enclosing a Stipulation of Dismissal of nonconsenting Defendant Larkin Enterprises, Saucier Affidavit at ¶ 7, was an "other paper" indicating to Defendants that their case was now removable.⁶

Pursuant to § 1446(b), it is when defendants receive some "other paper from which it may first be ascertained that the case is one which ... has become removable" that the thirty-day period begins to run. 28 U.S.C. § 1446(b). According to Black's Law Dictionary, the word "ascertain" means "to render certain or definite ... to clear of doubt or obscurity ... to find out by investigation." BLACK'S LAW DICTIONARY 114 (6th ed.1990). Defendants first "ascertained" that this case was fully removable when they received the "other paper" — the Stipulation of Dismissal — by which they learned that the nonconsenting Defendant was no longer a party to the case.

The Court rejects the suggestion by Plaintiff that notwithstanding the two-fold requirements for removal, Defendants had an obligation to submit its Notice of Removal as soon as they learned Plaintiff was alleging a federal cause of action, regardless of the fact that they knew they could not then garner unanimous consent among all Defendants for removal. The Court finds that Defendants acted as procedural and jurisdictional rules required: they made inquiry of all Defendants well within the time limit to determine their willingness to agree to removal; when they learned that one Defendant was not willing, they did not waste this Court's time by filing a Notice of Removal that they knew to be defective. Then, once the barrier to removal was lifted, Defendants promptly filed their Notice of Removal with the Court, see Notice of Removal (Pleading No. 1), along with affidavits attesting to their timely inquiries into the feasibility of removal. See Marchesi Affidavit at ¶¶ 4, 5, and Saucier Affidavit at ¶ 6. Defendants can hardly be faulted for endeavoring to comply with procedural requirements and, upon learning that they could not meet these requirements, refraining from filing what they knew to be a frivolous motion with this Court. Only when they knew they could fulfill all prerequisites to removal did they file their Notice of Removal with the Court. Their Notice of Removal was filed within thirty days of their discovery of Larkin's dismissal, the event that made the case fully removable.⁷ It was timely filed.⁸

CONCLUSION

For the reasons stated, Plaintiff's Motion to Remand is hereby DENIED. The Court, having determined that this case has been appropriately removed, hereby DENIES Plaintiff's request for attorney's fees.

So ORDERED.

1. From the pleadings, it does not appear that Defendants were ever served with the first Complaint.

2. It is not clear from the pleadings when Defendant County of Oxford received...