Shepard v. Egan, Civ. A. No. 90-30020-F.

• Decision Date: 13 August 1990
• Docket Number: Civ. A. No. 90-30020-F.
• Citation: 767 F. Supp. 1158
• Parties: Holly SHEPARD, Individually and as Administratrix of the Estate of Timothy Shepard, Plaintiff, v. Gary F. EGAN, James M. Canty, Brian Daley, Earl D. Harrington, Charles B. Gilmore, John M. Richardson, Francis S. Kozaczka, James Imelio, Gary M. Maroni, Richard C. Cadran, Francis P. Hughes, Thomas Nartowicz, Commonwealth of Massachusetts, Massachusetts Department of Public Safety, and Massachusetts Criminal Justice Training Council, Defendants.
• Court: U.S. District Court — District of Massachusetts

767 F. Supp. 1158

Holly SHEPARD, Individually and as Administratrix of the Estate of Timothy Shepard, Plaintiff, v. Gary F. EGAN, James M. Canty, Brian Daley, Earl D. Harrington, Charles B. Gilmore, John M. Richardson, Francis S. Kozaczka, James Imelio, Gary M. Maroni, Richard C. Cadran, Francis P. Hughes, Thomas Nartowicz, Commonwealth of Massachusetts, Massachusetts Department of Public Safety, and Massachusetts Criminal Justice Training Council, Defendants.

Civ. A. No. 90-30020-F.

United States District Court, D. Massachusetts.

April 24, 1990.

On Motion to Dismiss with Prejudice August 13, 1990.

Camille F. Sarrouf, Sarrouf, Tarricone & Flemming, Boston, Mass., Michael D. Hashim, Jr., Hashim & Spinola, Pittsfield, Mass., for plaintiff.

Jordan Ring, Philipp G. Grefe, Rachel D. Spitz, Ring, Rudnick & Grefe, Frederick W. Riley, Randi Levine, DiCara, Selig, Sawyer & Holt, Albert G. Tierney, Boston, Mass., Jack F. St. Clair, Murphy, McCoubrey, Murphy, Gelinas, Stocks & Auth, Chicopee, Mass., Timothy M. Burke, Joseph P. Kittredge, Daniel J. O'Connell, III, Law Office of Daniel J. O'Connell III, Richard E. Brody, Morrison, Mahoney & Miller, Boston, Mass., Edward Martin Pikula, Matroni, Dimauro, Fitzgerald & Liebel, Springfield, Mass., Carol S. Ball, Murphy & O'Connell, Mark Newman, Francis G. Chase, Hale, Sanderson, Byrnes & Morton, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

FREEDMAN, Chief Judge.

I. INTRODUCTION

Timothy Shepard of Pittsfield, Massachusetts, was employed by the City of Pittsfield as a full-time police officer. On September 19, 1988, Mr. Shepard began police training at the Massachusetts Criminal Justice Training Council ("Academy"), as required for his employment. He suffered injuries on that day while training at the Academy, and was hospitalized. On November 2, 1988, Mr. Shepard died of the injuries he had incurred.

On December 19, 1989, plaintiff Holly Shepard, wife of Timothy Shepard, commenced an action in Massachusetts Superior Court, County of Berkshire, against the Commonwealth of Massachusetts, two agencies of the Commonwealth, and the twelve named individuals ("officers"). The twelve individuals were all employed as directors, instructors, or state police officers at the Academy. Her complaint, containing fourteen separate counts, alleges that defendants are each responsible to some degree for Timothy Shepard's injuries and death. Plaintiff seeks damages for violations of civil rights protected under federal and state law. Her complaint also includes counts for wrongful death, emotional distress, loss of consortium, and other alleged losses. Of the fourteen counts, twelve involve questions of Massachusetts law, and two arise under laws of the United States. Of the twelve state law counts, six allege that the Commonwealth or its agencies are liable, and six allege that the officers are liable.

On January 23, 1990, the officers filed a motion with this Court to remove plaintiff's action to federal court. Plaintiff, however, has filed a motion to remand the action to the Superior Court. Defendants Academy, Commonwealth of Massachusetts ("Commonwealth"), and the Massachusetts Department of Public Safety join plaintiff in seeking remand.¹ The question for the Court, then, is whether the officers may remove this action, or any portion of it, to federal court. The Court, for the reasons stated below, remands to the Superior Court twelve of the fourteen counts in plaintiff's complaint, that is, all of plaintiff's claims based on Massachusetts law. The Court will not remand the two civil rights claims brought pursuant to 42 U.S.C. §§ 1983, 1988.² Rather, the Court will stay the section 1983 and section 1988 claims pending final disposition of the matter in state court.

II. DISCUSSION

A. Law of Removal

Title 28 U.S.C. § 1441 reads in relevant part as follows:

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

(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 without regard to the citizenship or residence of the parties. Any other such action 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.

These portions of the statute clearly provide that a cause of action may be removed to federal court only where the federal court would have had original jurisdiction over the action had it been brought in federal court initially. Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972); Cochran v. Montgomery County, 199 U.S. 260, 272-73, 26 S.Ct. 58, 62, 50 L.Ed. 182, 188 (1905). Removal statutes exist to limit a plaintiff's choice of forum; Congress has determined that defendants may choose the federal forum whenever the claim asserted by plaintiff states a cause of action over which original federal jurisdiction exists. "Congress has made it plain that the right of removal is to stand absent an express provision to the contrary...." Cosme Nieves v. Deshler, 786 F.2d 445, 451 (1st Cir.1986); Mercy Hospital Association v. Miccio, 604 F.Supp. 1177, 1179 (E.D.N.Y.1985). In short, this Court is without discretion with regard to the removal of claims from the state courts, where this Court would have had original jurisdiction over the claims had plaintiff brought suit here initially. The choice of forum under these circumstances belongs to the defendant, not to the plaintiff or the Court. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 344, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976); see also Herman Schamisso, PVBA v. Menelli, Inc., 657 F.Supp. 63, 65 (S.D.Fla.1986).

In this case, the officers have agreed to seek removal of the entire case to federal court. The Commonwealth defendants, however, seek remand to Superior Court, as does plaintiff. The general rule for removal requires that all defendants must join in the petition to remove before a federal court may grant removal. Hill v. City of Boston, 706 F.Supp. 966, 968 (D.Mass.1989); Garside by Garside v. Osco Drug, Inc., 702 F.Supp. 19, 21 (D.Mass. 1988). However, exceptions to this rule exist. For example, those defendants who could not have removed the case themselves if they had been the sole defendants in the action, need not join the removal petition.³ The Court can grant the petition to remove in the absence of such defendants' consent.

Here, the Commonwealth defendants could not have removed the case from Superior Court because this Court would not have had original jurisdiction over the matter had plaintiff brought the action here initially. As will be discussed infra, the eleventh amendment prohibits a federal court from exercising jurisdiction over a case against a state by its citizen. Therefore, the Commonwealth defendants need not join the petition in order for this Court to grant removal.

The officers have properly removed the two federal civil rights counts from the Superior Court. Federal courts have original jurisdiction over claims arising under the Civil Rights Act, and all necessary defendants have joined the petition. Under the removal statutes, defendants may choose the federal or state forum where the complaint states a federal cause of action on its face. The Court acknowledges that it must accept jurisdiction over the two federal civil rights counts.

However, the Court cannot grant the removal petition as to the counts against the Commonwealth defendants. Existing case law under the eleventh amendment establishes unequivocally that a federal court is without jurisdiction to decide a claim brought against a state by its citizen, unless a state statute provides to the contrary. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). The Supreme Judicial Court decided in Irwin v. Commissioner of Department of Youth Services, 388 Mass. 810, 448 N.E.2d 721, 727 (1983), that the Commonwealth of Massachusetts had not consented to suit in federal courts. These cases lead to the unmistakable conclusion that the eleventh amendment precludes claims of any nature against the Commonwealth or its agencies in federal court.⁴

In the present case, plaintiff's complaint asserts claims against the Commonwealth defendants in six separate counts. As this Court has no jurisdiction over such claims for eleventh amendment reasons, the Court hereby remands those six counts to the Superior Court. Plaintiff's complaint also brings two counts against the officers under the Civil Rights Act. The officers have fulfilled the statutory prerequisites under 28 U.S.C. § 1441(a) and (b). Therefore, the officers have properly removed the civil rights counts to this Court.

B. Six Remaining Claims against the Officers

Six counts remain, all of them alleging wrongdoing by the officers, and all based on theories of Massachusetts law.

1. Pendent Jurisdiction

The federal courts have no original jurisdiction with regard to claims arising under state law and absent diversity of citizenship. Where a federal court would not have had original jurisdiction over claims had plaintiff brought suit there initially, the federal court has discretion, under the doctrine of pendent jurisdiction, to decide whether or not to determine those claims. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988).

Principles of pendant jurisdiction apply to cases removed to federal court from state court. Charles...