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Dowdell v. Lee County

United States District Court, M.D. Alabama, Eastern Division

March 28, 2018

LEE COUNTY, ALABAMA; JAY JONES, individually and in his capacity as Sheriff for Lee County, Alabama; RICHARD ZAYAS, individually and in his capacity as a Deputy Sheriff for Lee County, Alabama; and COREY WELCH, individually and in his capacity as the Assistant Administrator for the Lee County Jail, Defendants.



         Before the court are several motions filed by the parties, including the following: Defendant Lee County's Motion for Summary Judgment (Doc. # 1-9); Plaintiff Calvin Dowdell's Motion to Accept Plaintiff's Second Motion to Compel (Doc. # 1-10); the Motions to Dismiss (Docs. # 13 & 15) filed by all Defendants; Plaintiff's Motion to Remand (Doc. # 21) this matter to the state court; and Plaintiff's Motion for Leave to Amend the Complaint[1] (Doc. # 24). For the reasons that follow, all motions, save Plaintiff's Motion for Leave to Amend, will be denied.

         I. BACKGROUND

         Although this action was removed to this court in August of 2017, it has been pending since May of 2015, when Plaintiff originally filed his complaint in the Circuit Court of Lee County, Alabama. (See Doc. # 1-1.) Plaintiff sued Lee County, Lee County Sheriff Jay Jones, Sheriff's Deputies Richard Zayas and Robert Alexander, and a number of fictitious parties. (Doc. # 1-1, at 2.) Plaintiff alleged violations of his constitutional rights pursuant to 42 U.S.C. § 1983, as well as several state law tort claims. (Doc. # 1-1, at 2.) Over the following two years, discovery and motions practice ensued, and additional complaints were filed. Pertinent to today's Order are the following state court developments: Plaintiff filed his First Amended Complaint on September 29, 2015 (Doc. # 1-2); the Circuit Court granted-in-part and denied-in-part the motions to dismiss filed by the defendants named in the First Amended Complaint on April 4, 2016, specifically declining to dismiss Plaintiff's claims against Lee County and Defendants Zayas and Jones in their individual capacities (Doc. # 1-11, at 150-54); Plaintiff filed his Motion for Leave to File Second Amended Complaint to Add Additional Parties, namely Defendant Corey Welch, on June 29, 2017 (Doc. # 1-11, at 265-66); the Circuit Court entered an order granting Plaintiff's Motion for Leave to File Second Amended Complaint on June 30, 2017, and instructed Plaintiff both to file the Second Amended Complaint on or before July 15, 2017, and to file, on or before July 21, 2017, another motion to compel to address purportedly inadequate discovery responses from Defendants (Doc. # 1-11, at 268); Defendant Lee County filed its Motion for Summary Judgment on July 10, 2017 (Doc. # 1-9); Plaintiff filed his Second Amended Complaint on July 14, 2017 (Doc. # 1-4); Plaintiff filed his Motion to Accept Plaintiff's Second Motion to Compel on July 22, 2017 (Doc. # 1-10); and Defendants filed their “Objection to the Second Amended Complaint” on August 1, 2017, in which Defendants asserted that Plaintiff's claim against Defendant Welch is time-barred (Doc. # 1-11, at 496-97). On August 11, 2017, Defendant Welch filed his Notice of Removal of the action in this court. (Doc. # 1.)

         Because Plaintiff alleges violations of his constitutional rights, Defendant Welch correctly asserts that removal is substantively appropriate because this court has original jurisdiction over such claims and may exercise supplemental jurisdiction over Plaintiff's state law claims. (Doc. # 1, at 3.) Defendant Welch further asserts that, because he was not served with the Second Amended Complaint until July 18, 2017, and was not a party to any previous iteration of the complaint, as the “last-served defendant” he was entitled to remove the action, and did remove the action, within thirty days from the date of service of the Second Amended Complaint. (Doc. # 1, at 2-3.) Defendant Welch also indicates that all Defendants, through their common counsel, have consented to the removal. (Doc. # 1, at 3.) Finally, counsel for Defendants certified in the Notice of Removal, erroneously as it turns out, that he provided a copy of the Notice via electronic mail to Plaintiff's counsel on August 11, 2017. (Doc. # 1, at 4.[2]) Defendant Welch's counsel also certified that he served a copy of the Notice on the Lee County Circuit Court Clerk via Federal Express overnight delivery on August 11, 2017. (Doc. # 1, at 4.)

         On August 17, 2017, Defendants filed their motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiff's Second Amended Complaint fails to state any claims upon which relief could be granted under the Federal Rules' standard of pleading, as explicated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). (See Doc. # 14, at 4-12; Doc. # 16, at 4-8.) On August 23, 2017, the court entered an Order (Doc. # 17) instructing Plaintiff that, should he elect not to seek a timely remand of the matter to the state court, then he must file a written response by September 18, 2017, and show cause why Defendants' motions to dismiss should not be granted. On that date, however, Plaintiff filed his Opposition to Defendant's Removal and Motion to Remand (Doc. # 21). On September 19, 2017, Defendants filed their Response (Doc. # 22) in opposition to Plaintiff's Motion to Remand, in which they argued that Plaintiff's Motion to Remand is untimely and without merit. Also on September 19, 2017, the court entered an Order (Doc. # 23) directing Plaintiff to reply to Defendants' response and, particularly, to address Defendants' timeliness argument. Thereafter, on September 27, 2017, Plaintiff filed his Reply (Doc. # 24), in which he argued that Defendant Welch failed to comply with the statutory requirements of removal, and thus failed to timely perfect the removal, and further asserted that his Motion to Remand was timely filed because he was never properly served with notice of the removal and, furthermore, the improper service he was afforded was not made until August 17, 2017. Finally, on September 29, 2017, Defendants filed their Reply (Doc. # 25) to Plaintiff's reply, in which they argue that the removal was procedurally proper and timely perfected, notwithstanding any purported defects highlighted by Plaintiff.


         A. Motion to Remand

         The court first considers Plaintiff's motion to remand, in which Plaintiff, when read in conjunction with his reply to Defendants' opposition to remand, argues that Defendant Welch did not timely remove the matter to this court due to his purported failures to comply with the statutory requirements of removal.

         Federal courts are courts of limited jurisdiction. Congress has granted federal district courts original subject-matter jurisdiction over only two types of civil actions: (1) those “arising under the Constitution, laws, or treaties of the United States, ” 28 U.S.C. § 1331; and (2) those that involve an amount in controversy in excess of $75, 000 “between citizens of different States, between U.S. citizens and foreign citizens, or by foreign states against U.S. citizens, ” id. § 1332. Pursuant to 28 U.S.C. § 1441(a), defendants have the right to remove an action from state court to federal court, so long as the federal court would have had original subject-matter jurisdiction over the action pursuant to § 1331 or § 1332. While defendants have a right to remove, “removal statutes are construed narrowly; [and] where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).

         Here, there is no dispute that this court has original jurisdiction over the subject matter of a portion of Plaintiff's suit - his constitutional claims against all Defendants - or that the court may exercise supplemental jurisdiction over the remainder of the suit. Rather, Plaintiff challenges whether Defendant Welch has complied with the procedural requirements of removal. Those procedural requirements are a matter of federal statutory law. When removing a case to federal court, notice must be filed with the federal court “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.” 28 U.S.C. § 1446(b)(1). This means that once a defendant is served with the complaint in state court the clock begins ticking and the defendant has thirty days from service to remove the case if he so desires. For multi-defendant litigation in which defendants are served on different days, the Eleventh Circuit recognizes the “last-served defendant” rule, which affords each defendant thirty days from the date of formal service to file a notice of removal. Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1208-09 (11th Cir. 2008). Removal by the last-served defendant timely removes the case, even if a previously served defendant's thirty-day window to remove has expired. Jones v. Commonwealth Land Title Ins. Co., 459 Fed.Appx. 808, 810 (11th Cir. 2012) (citing Bailey, 536 F.3d at 1207).

         Here, Plaintiff's Second Amended Complaint, the first iteration to name Defendant Welch, was filed in the state court on July 14, 2017, and was served on Defendant Welch on July 18, 2017. (See Doc. # 1-5.) Defendant Welch, as the last-served defendant in state court, filed his notice of removal with this court on August 11, 2017. (Doc. # 1.) Accordingly, Defendant Welch timely filed his notice of removal to this court. See Bailey, 536 F.3d at 1209 (holding that each served defendant is permitted thirty days after service of the complaint in which to seek removal).[3]

         Notwithstanding the foregoing, Plaintiff charges that Defendant Welch “failed to meet all the requirements of removal.” (Doc. # 24, at 2.) In particular, Plaintiff argues that Defendant Welch failed to comply with the statutory requirements of removal when he, purportedly, failed to give Plaintiff prompt and proper notice of the removal within thirty days of his receipt of the Second Amended Complaint and, furthermore, failed to attach to the Notice of Removal all of the state court “process, pleadings, and orders” required by 28 U.S.C. § 1446(a). (Doc. # 24, at 2-3.) Thus, Plaintiff reasons, “Defendant Corey Welch has failed to remove the case within the 30 day[] statutory limit.” (Doc. # 24, at 2.)

         Defendants argue that Plaintiff's opposition to removal and motion to remand is untimely. (Doc. # 22, at 1.) As Plaintiff raises procedural, rather than jurisdictional, challenges to removal, his motion is subject to the statutory time limitation imposed on parties opposing removal. “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C. § 1447(c). “[F]ederal courts strictly observe the thirty-day deadline for filing motions to remand.” Packard v. Temenos Advisory, Inc., 159 F.Supp.3d 1344, 1351 (S.D. Ga. 2016) (quoting Alter v. Bell Helicopter Textron, Inc., 944 F.Supp. 531, 535 (S.D. Tex. 1996)). Failure to file an objection to a nonjurisdictional defect in removal ...

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