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Ficken v. Golden

March 16, 2010

IVAN FICKEN ET AL., PLAINTIFFS,
v.
OLIVIA GOLDEN ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos. 17, 24, 26, 27, 28, 29

MEMORANDUM OPINION DENYING THE PLAINTIFFS'MOTION TO REMAND;GRANTING THE MOTIONS TO DISMISS FILED BY DEFENDANTS EVELYN FURSE,COVINGTON &BURLING,LLP, THE FRENCH INTERNATIONAL SCHOOL AND STEIN LUNDEBYE, AND DISMISSING THE CLAIMS AGAINST ALL DEFENDANTS;DENYING THE PLAINTIFFS'MOTION FOR RELIEF UPON RECONSIDERATION;DENYING AS MOOT THE PLAINTIFFS'MOTION FOR CERTIFICATION FOR INTERLOCUTORY APPEAL

I. INTRODUCTION

This matter is before the court on the plaintiffs' motion to remand; the motions to dismiss filed by defendants Evelyn Furse, Covington & Burling, LLP ("Covington"), the French International School ("FIS") and Stein Lundebye; the plaintiffs' motion for relief upon reconsideration; and the plaintiffs' motion for certification for interlocutory appeal. The plaintiffs, Ivan Ficken and his adopted son, Ciprian Ivanov, have asserted a host of constitutional, statutory and common law claims against the defendants, arising out of child neglect proceedings commenced in November 1998 against plaintiff Ficken. For the reasons discussed below, the court denies the plaintiffs' motions, grants the aforementioned defendants' motions to dismiss and dismisses the claims against all defendants.

II. FACTUAL & PROCEDURAL BACKGROUND

As the plaintiff readily acknowledges, "the present cause of action at issue here largely duplicates . . . Plaintiffs' previous claim in this Court which was denominated CV04-350." Pl.'s Mot. to Remand at 3. Indeed, a brief review of the complaint in Ficken v. Golden, an action commenced in this court in March 2004 ("the 04-350 Action"), and the complaint filed in this action indicates that the two cases are based on the same events, concern almost identical causes of action and, with the exception of defendants Furse and Covington, involve exactly the same parties. Compare Compl., Ficken v. Golden, Civ. Action No. 04-0350 (D.D.C. Mar. 4, 2004) with Compl. Accordingly, a detailed presentation of the factual allegations underlying this case may be found in a decision in the 04-350 Action and will not be repeated here. See Ficken v. Golden, Civ. Action No. 04-0350 (D.D.C. Mar. 24, 2005) (Mem. Order) (Urbina, J.) at 1-6.

The 04-350 Action proceeded in the following manner. In decisions issued on March 24, 2005 and October 11, 2005, the court dismissed the claims against the individually named defendants, as well as the plaintiffs' claims for defamation, negligent infliction of emotional distress and violations of the Fair Housing Act. See generally id.; Ficken v. Golden, Civ. Action No. 04-0350 (D.D.C. Oct. 11, 2005) (Order). On September 18, 2006, the court ordered the plaintiffs to file a more definite statement of the claims set forth in their 172-page complaint, warning that failure to comply could result in dismissal of the case. See generally Ficken v. Golden, Civ. Action No. 04-0350 (D.D.C. Sept. 18, 2006) (Order). The plaintiffs failed to comply with the court's order, and on December 27, 2007, the court dismissed the plaintiffs' complaint in its entirety. See Ficken v. Golden, Civ. Action No. 04-0350 (D.D.C. Dec. 27, 2007) (Order). During the pendency of the 04-350 Action, the plaintiffs filed numerous motions for reconsideration, appeals to the Circuit and petitions for a writ of certiorari to the Supreme Court, all of which were unsuccessful.

On December 9, 2008, the plaintiffs filed this complaint in the Superior Court for the District of Columbia. See Notice of Removal, Ex. 1. On the same day, the plaintiffs filed an identical complaint in this court, together with a motion to proceed in forma pauperis, which was assigned to Judge Kennedy.*fn1 See Pls.' Mot. to Remand 6. Defendants Fenty and the D.C. Office of the Attorney General filed a Notice of Removal on February 20, 2009, removing the Superior Court action to this court. See generally Notice of Removal.

On March 20, 2009, defendant Fenty filed a motion to dismiss the claims against him, asserting improper service of process and res judicata. See generally Fenty Mot. to Dismiss. The following day, the court issued an order advising the plaintiff that his failure to respond to defendant Fenty's motion to dismiss could result in the dismissal of his claims. See Order (Mar. 21, 2009). After the plaintiff failed to file a timely opposition, the court granted defendant Fenty's motion to dismiss as conceded. See Order (Apr. 8, 2009).

On the same day defendant Fenty moved to dismiss, the plaintiffs filed a motion to remand this action back to the Superior Court. See generally Pls.' Mot. to Remand. The plaintiffs subsequently filed motions for relief upon reconsideration of the order granting as conceded defendant Fenty's motion to dismiss, see generally Pls.' Mot. for Recons., and a motion requesting that the court certify that order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), see generally Pls.' Mot. for Certification.

On April 20, 2009, defendant FIS filed a motion to dismiss the claims against it citing res judicata, in which defendant Stein Lundebye joined. See generally FIS Mot. to Dismiss; S. Lundebye Mot. to Dismiss. The same day, defendants Furse and Covington filed a motion to dismiss based on the plaintiffs' purported failure to state a cognizable claim against those defendants. See generally Furse & Covington Mot. to Dismiss. With all the aforementioned motions fully submitted, the court turns to the parties' arguments and the applicable legal standards.

III. ANALYSIS

A. The Court Denies the Plaintiffs' Motion to Remand

The plaintiffs contend that this action should be remanded to the Superior Court, where it was originally filed, because not all of the defendants expressly consented to removal. See Pls.' Mot. to Remand at 1. The defendants respond that this procedural defect does not warrant remand and that, at any rate, the plaintiffs have waived any right they may have had to remand by affirmatively invoking the jurisdiction of this court. See generally Defs.' Opp'n to Pls.' Mot. to Remand.*fn2

As the plaintiffs rightly point out, in a multi-defendant case, removal requires the unanimous consent of all defendants served with the complaint. See Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th Cir. 1988) (noting that "[o]rdinarily . . . all defendants in a state action must join in the petition for removal, except for nominal, unknown or fraudulently joined parties"); Williams v. Howard Univ., 984 F. Supp. 27, 29 (D.D.C. 1997) (observing that "it is well established that removal generally requires unanimity among the defendants") (quoting Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995)); see also 28 U.S.C. § 1441(a). Although defendants FIS, Furse and Covington expressly consented to removal, the remaining defendants have not expressed their consent or objection to removal. See Defs.' Opp'n to Pls.' Mot. to Remand. The absence of express unanimity among the defendants authorizes the court to remand the case to the Superior Court. See Lapoint v. Mid-Atl. Settlement Servs., Inc., 256 F. Supp. 2d 1, 3 (D.D.C. 2003) (remanding the case based on the absence of unanimous consent); accord Williams, 984 F. Supp. at 29.

It is, however, equally clear that "[a] procedural defect in removal . . . does not affect the federal court's subject matter jurisdiction and therefore may be waived." Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir. 1996); cf. 28 U.S.C. § 1447(c) (requiring remand in the absence of subject matter jurisdiction).*fn3 Indeed, "[a] party that engages in affirmative activity in federal court typically waives the right to seek a remand." Koehnen, 89 F.3d at 528; see also Lanier v. Am. Bd. of Endodontics, 843 F.2d 901, 905 (6th Cir. 1988) (holding that the plaintiff waived her right to object to procedural defects in the removal proceedings by filing requests for discovery, entering into stipulations and seeking to amend her complaint); Riggs v. Plaid Pantries, Inc., 233 F. Supp. 2d 1260, 1271 (D. Or. 2001) (concluding that the plaintiffs waived any right to seek remand by filing motions in the federal court).

The plaintiffs acknowledge that the Superior Court complaint "largely duplicates" the complaint they previously filed in this court in the 04-350 Action. Pls.' Mot. to Remand at 3. The plaintiffs also acknowledge that on the same date they filed their Superior Court complaint, they filed an identical complaint in this court, together with a motion to proceed in forma pauperis.*fn4 Pls.' Mot. to Remand at 6 (stating that "Plaintiffs have filed essentially the same cause of action in both the DC Superior Court as well as the DC Federal Court"); see also Defs.' Opp'n to Pls.' Mot. to Remand, Ex. B. Thus, on at least two prior occasions, the plaintiffs have affirmatively invoked federal jurisdiction over the claims raised in the Superior Court complaint. See Pls.' Mot. to Remand at 3, 6. In so doing, they have waived any right to remand they may have otherwise had based on procedural defects in the removal of this action.*fn5 See Koehnen, 89 F.3d at 528 (concluding that the plaintiff waived any procedural defect in connection with removal by moving to file a supplemental complaint in the federal court and participating in oral argument on the motion); Moffit v. Balt. Am. Mortgage, 665 F. Supp. 2d 515, 517 (D. Md. 2009) (holding that the plaintiffs ...


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