Phillips v. Corrections Corp. of America

• Decision Date: 16 March 2005
• Docket Number: No. Civ.A. 04-858(RJL).,Civ.A. 04-858(RJL).
• Citation: 407 F.Supp.2d 18
• Parties: Alonzo PHILLIPS, Plaintiff, v. CORRECTIONS CORPORATION OF AMERICA, Fred Figueroa, and John Does, Unnamed Individual Members of the Correctional Treatment Facility's Medical and Administrative Staff, Defendants. Alonzo Phillips, Plaintiff, v. District of Columbia, Odie Washington, and John Does, Unnamed Individual Members of the D.C. Jail's Medical and Administrative Staff, Defendants.
• Court: U.S. District Court — District of Columbia

407 F.Supp.2d 18

Alonzo PHILLIPS, Plaintiff, v. CORRECTIONS CORPORATION OF AMERICA, Fred Figueroa, and John Does, Unnamed Individual Members of the Correctional Treatment Facility's Medical and Administrative Staff, Defendants.

Alonzo Phillips, Plaintiff, v. District of Columbia, Odie Washington, and John Does, Unnamed Individual Members of the D.C. Jail's Medical and Administrative Staff, Defendants.

No. Civ.A. 04-858(RJL).

United States District Court, District of Columbia.

March 16, 2005.

Michael X. Imbroscio, Covington & Burling, Washington, DC, for Plaintiff.

Frank R. Volpe, Alexander J. Willscher, Sidley Austin Brown & Wood, Steven J. Anderson, Office of Corporation Counsel, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

LEON, District Judge.

Defendants Corrections Corporation of America, Fred Figueroa, the District of Columbia, Odie Washington, and John Does (collectively "consolidated defendants") have sought removal of the present action from the Superior Court of the District of Columbia ("Superior Court") to this Court, pursuant to 28 U.S.C. § 1441(b). Plaintiff Alonzo Phillips subsequently filed the instant motion to remand the case back to the Superior Court on grounds that the consolidated defendants failed to file their notice of removal within the time prescribed in 28 U.S.C. § 1446(b). Upon consideration of plaintiff's motion, defendants' opposition, and the entire record herein, the Court GRANTS plaintiff's motion for the following reasons.

BACKGROUND

The facts and procedural history relevant to the plaintiff's motion to remand are as follows. Plaintiff was incarcerated in a District of Columbia jail from June 2001 until he was transferred to the Corrections Corporation of America's Correctional Treatment Facility ("CTF") in November 2001. See Exhibit A to Pl.'s Mot. to Remand ("Ex.A"). In the spring of 2002, Plaintiff filed separate actions in Superior Court against the District of Columbia ("District") and the Corrections Corporations of America Medical Staff (collectively "first-served defendants"). See Ex. A to Pl.'s Mot. to Remand; Exhibit 1 to Notice of Removal ("Ex.1"), p. 1. The plaintiff was pro se when he filed these initial actions and both complaints were set forth on boilerplate complaint forms. In each complaint, plaintiff asserted, in essence, that he was given inadequate treatment on his surgically repaired knee while in the D.C. Jail and after his transfer to the CTF. See id.

On May 7, 2003, plaintiff filed amended complaints in both actions. See Exhibit B. to Pl.'s Mot. to Remand ("Ex.B"); Ex. 1, p. 13. In these amended complaints, plaintiff set forth additional facts and included a claim for "deliberate indifference" under the Eighth Amendment to the United States Constitution. Ex. B, p. 10; Ex. 1, p. 15. Neither the District nor the CTF filed a motion to remove these cases to federal court.

In November 2003, the District moved to consolidate both actions on grounds that they share common facts and that claims were raised under the Eighth Amendment to the Constitution in both actions. Ex. 1, p. 63-64. In February 2004, the Superior Court consolidated the cases and granted plaintiff, who was now represented by counsel, leave to file a consolidated amended complaint. Ex. 1, p. 178. On May 5, 2004, plaintiff filed his consolidated amended complaint, in which he further crystallized many of the arguments he raised in his previous complaints. Pertinent to the instant motion, plaintiff also named, for the first time, defendants Fred Figueroa, Odie Washington, and various fictitious John Doe defendants from the medical and administrative staffs of both the CTF and the D.C. Jail. Ex. 1, pp. 198-99; 221-22. On May 27, 2005, the consolidated defendants filed a joint notice of removal in this Court. See Notice of Removal, p. 1.

ANALYSIS

There is no dispute that the first-named defendants failed to file a notice of removal within the time prescribed by the removal statute. Nevertheless, the consolidated defendants now seek removal and contend that their notice is timely because it was filed within thirty days of receiving the plaintiff's amended complaint. Def.'s Memorandum in Opposition to Pl.'s Motion to Remand, p. 3 ("Def.'s Mem."). In short, consolidated defendants argue that the addition of the new defendants in the consolidated complaint essentially "revived" the first-served defendants' rights of removal and made it possible for the entire action to now be adjudicated in federal court. This Court disagrees for the following reasons.

When a plaintiff files a motion to remand, the defendant bears the burden of proving that the court has jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The removal statute at issue here, 28 U.S.C. § 1446(b), states in relevant part:

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.... 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, through service or otherwise, of a copy of an amended pleading....

28 U.S.C. § 1446(b) (emphasis added). Because § 1446(b) speaks in terms of only one defendant (e.g., "the defendant"), a plain reading of the statute does not expressly address the issue in this case: whether an action, containing multiple defendants, can be removed when the time period for removal has expired with respect to a portion of those defendants.

As a general rule, in cases with multiple defendants, removal is only appropriate when each defendant unambiguously and independently consents to removal. Kopff v. World Research Group, LLC, et al., 298 F.Supp.2d 50, 54 (D.D.C. 2003) ("[I]t is well established that removal generally requires unanimity among the defendants."). Therefore, unless each defendant consents to removal in accordance with § 1446(b)'s thirty day time period, the removal is untimely. Williams v. Howard Univ., et al., 984 F.Supp. 27, 29 (D.D.C. 1997). However, determining whether each defendant's consent is timely can be problematic when, as here, some defendants are added to an ongoing action and the time for removal has expired with respect to the first-served defendants.

Jurisdictions have adopted three different, and widely divergent, approaches to calculating when the thirty day time period in this type of situation begins to run under § 1446(b). A majority of courts apply the "first-served rule." E.g., Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254 (5th Cir.1988) (holding that later-served defendants cannot remove the action if the first-served defendants do not effect a timely removal). This rule has been criticized, however, on grounds that it enables plaintiffs to use dilatory tactics to overcome the legitimate removal rights of later-served defendants. See McKinney v. Board of Trustees of Mayland Community College, 955 F.2d 924, 928 (4th Cir.1992); see also Russell v. LJA Trucking Inc., 2001 WL 527411, at * 1-2 (E.D.N.Y. May 11, 2001) (rejecting "first-served rule"). At the other end of the spectrum is the "last-served rule," which is applied by a minority of courts. E.g., Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir.1999) (holding that later-served defendants have thirty days from the date of service on them to file a notice of removal even though the first-served defendants failed to effect a timely removal). The final approach is an "intermediate rule" or sometimes referred to as the ...