Spillers v. Tillman, Civil Action No. 5:96-cv-157(Br)(S).

• Decision Date: 17 March 1997
• Docket Number: Civil Action No. 5:96-cv-157(Br)(S).
• Citation: 959 F.Supp. 364
• Parties: John SPILLERS and Sonja Spillers, Plaintiffs, v. C. R. TILLMAN, M.D. and Natchez Regional Medical Center f/k/a Jefferson Davis Memorial Hospital, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

959 F.Supp. 364

John SPILLERS and Sonja Spillers, Plaintiffs, v. C. R. TILLMAN, M.D. and Natchez Regional Medical Center f/k/a Jefferson Davis Memorial Hospital, Defendants.

Civil Action No. 5:96-cv-157(Br)(S).

United States District Court, S.D. Mississippi, Western Division.

March 17, 1997.

COPYRIGHT MATERIAL OMITTED

Gail S. Akin, Boyd & Akin, Jackson, MS, for John Spillers, Sonja Spillers.

Richard D. Underwood, Varner, Parker, Sessums & Akin, Vicksburg, MS, for C. R. Tillman.

James P. Streetman, III, Dianne M. Wolfe, Clark, Scott & Streetman, Jackson, MS, Richard Underwood, Varner, Parker, Sessums & Akin, Vicksburg, MS, for Natchez Regional Medical Center.

MEMORANDUM OPINION AND ORDER

BRAMLETTE, District Judge.

This cause is before the Court on the plaintiffs' (John Spillers and Sonja Spillers) motion to remand (docket entry no. 8). Having carefully considered the motion and responses, as well as the memoranda and supporting documents, the Court finds as follows:

This case was originally filed in the Circuit Court of Adams County, Mississippi, on October 2, 1996. The defendant Natchez Regional Medical Center ("the Hospital") accepted process by Waiver of Process on October 7, 1996. The defendant C. R. Tillman, M.D. ("Tillman"), was personally served with process on October 11, 1996. The complaint alleges claims against both defendants for negligence under state law.

On October 15, 1996, Richard D. Underwood, the attorney for defendant Tillman, filed a Notice of Removal in state court, removing the action to this Court on the basis of federal question jurisdiction, 28 USC § 1331. The Notice of Removal refers to the defendants in the plural, and states that the defendants (plural) are filing the Notice of Removal. However, the Notice does not state that Mr. Underwood is authorized to act for the Hospital. Mr. Underwood signed the Notice as counsel for the defendant (singular). The Notice does not contain a signature line for the Hospital or its attorney.

On October 25, 1996, the Hospital filed its Answer and Motion to Dismiss in this Court. Other than the caption, there is nothing in the Answer and Motion to indicate that the action has been removed to federal court. There is no reference to removal, to joinder in the removal, or to the assertion of federal removal jurisdiction.

On November 12, 1996, the plaintiffs filed their motion to remand, alleging that the Hospital failed to join in or consent to the Notice of Removal within 30 days of being effectively served with process, as required by 28 U.S.C. § 1446(a).¹

The statute governing what actions are removable states in part:

(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 the 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....

28 U.S.C. § 1441(a)(b). The statute governing the procedure for removal states:

(a) A defendant or defendants desiring to remove any civil action ... from a State court shall file in the district court of the United States for the district and division within which such action is pending 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, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(a)(b).

The right to remove is purely statutory. Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.1985). Most cases emphasize that the procedural requirements for removal from state to federal court, although not jurisdictional, are to be strictly construed and enforced in favor of state court jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); McManus v. Glassman's Wynnefield, Inc., 710 F.Supp. 1043, 1045 (E.D.Pa.1989). There is nothing in the removal statute that suggests that a district court has "discretion" to overlook or excuse prescribed procedures. Defective removal procedure is a proper ground for remand. Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1215 (3d Cir.1991); Employers Ins. of Wausau v. Certain Underwriters, 787 F.Supp. 165, 166 (W.D.Wis.1992); Shamrock Oil & Gas, 313 U.S. at 108-09, 61 S.Ct. at 872; Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990) (stating that "all doubts [about removal] should be resolved in favor of remand."), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991).

When there is doubt as to the right to removal in the first instance, ambiguities are to be construed against removal. Samuel v. Langham, 780 F.Supp. 424, 427 (N.D.Tex.1992); see also, Fellhauer v. Geneva, 673 F.Supp. 1445, 1447 (N.D.Ill.1987). "The district court, in a challenged case, may retain jurisdiction only where its authority to do so is clear." Gorman v. Abbott Laboratories, 629 F.Supp. 1196, 1203 (D.R.I.1986). "The removing party bears the burden of showing that removal was proper." Medical College of Wisconsin Faculty Physicians & Surgeons v. Pitsch, 776 F.Supp. 437, 439 (E.D.Wis.1991). "This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute." Albonetti v. GAF Corporation-Chemical Group, 520 F.Supp. 825, 827 (S.D.Tex.1981).

As a general rule, all defendants must join in a removal petition in order to effect removal.² Northern Illinois Gas Co. v. Airco Industrial Gases, Div. of Airco, Inc., 676 F.2d 270, 272 (7th Cir.1982); Padden v. Gallaher, 513 F.Supp. 770, 771 (E.D.Wis.1981); Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 508 (E.D.Va.1992); Knickerbocker v. Chrysler Corporation, 728 F.Supp. 460 (E.D.Mich.1990); Fellhauer, 673 F.Supp. at 1447; Fields v. Reichenberg, 643 F.Supp. 777, 778 (N.D.Ill.1986); Darras v. Trans World Airlines, Inc., 617 F.Supp. 1068, 1069 (N.D.Ill.1985). See also Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 14A Federal Practice and Procedure § 3731, at 504-07 (West 2d Ed.1985).

There is no express statutory requirement for joinder or consent by co-defendants; however, the case law firmly establishes this requirement, which is known as the "rule of unanimity." See Martin Oil Co. v. Philadelphia Life Ins. Co., 827 F.Supp. 1236, 1237 (N.D.W.Va.1993). Although it is not necessary that all defendants sign the notice of removal, each defendant who has been served must at least communicate its consent to the court no later than thirty days from the day on which the first defendant was served. 28 U.S.C. § 1446(b); Getty Oil Corporation v. Insurance Company of North America, 841 F.2d 1254, 1262-63 (5th Cir. 1988).³

Although there is authority for the proposition that this communication to the court may be oral, see Fellhauer, 673 F.Supp. at 1447, the reference in the statute to "a notice of removal signed pursuant to Rule 11," 28 U.S.C. § 1446(a), suggests that a defendant's communication of his or her consent to removal must be in a writing signed by that defendant or by his or her attorney. Creekmore, 797 F.Supp. at 508; Fed.R.Civ.P. 11. The Fifth Circuit Court of Appeals has held that there must be a timely filed written indication from each served defendant, or from some person purporting to formally act on his/her behalf and with the authority to do so, that he/she has actually consented to removal. Getty Oil, 841 F.2d at 1262 n. 11.

While the issue most often arises in diversity cases, the requirement that defendants unanimously join in a removal petition extends to federal question cases as well. Hess v. Great Atlantic & Pac. Tea Co., Inc., 520 F.Supp. 373, 375 (N.D.Ill.1981). This advances, among other things, 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 Shamrock Oil, 313 U.S. at 108, 61 S.Ct. at 872 ("Not only does the language of the Act of 1887 evidence the Congressional purpose to restrict the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation.").

Application of the unanimity rule to federal question cases eliminates the risk of inconsistent state and federal adjudications; prevents one defendant from imposing his choice of forum upon other unwilling defendants and an unwilling plaintiff; and advances, as a matter of comity, the legislative and judicial policy that state courts are as competent as federal courts to hear federal questions that Congress has not committed to exclusively federal jurisdiction. Hess, 520 F.Supp. at 375 (citing Chicago, Rock Island & Pacific Railway Company v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); Van Slambrouck v. Employers Mutual Liability Insurance Company, 354 F.Supp. 366, 368 (E.D.Mich.1973); Charles Dowd Box Company v. Courtney, 368 U.S. 502, 507-08, 82 S.Ct. 519, 522-23, 7 L.Ed.2d 483 (1962); Testa v....