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Edward D. Ballard, et al v. the District of Columbia

January 27, 2012


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Defendants District of Columbia ("D.C."), Detective Charles Hilliard, and D.C. Child and Family Services Agency employees Kenneth Frazier and William Johnson move under Federal Rule of Civil Procedure 59(e) for reconsideration of the order remanding the case to the Superior Court of the District of Columbia due to an untimely removal. They assign as error one allegedly misstated key fact and the order's analysis of the "last-served" rule, one of three potential rules governing deadlines for consent to removal. The plaintiffs, the family of decedent Yiana-Michelle Ballard, oppose the motion arguing that 28 U.S.C. § 1447(d) bars review, and that in any event, the defendants failed to identify any new law, new evidence, or clear error warranting reconsideration. Because the defendants have failed to demonstrate that reconsideration is either allowed under 28 U.S.C. § 1447(d) or warranted under Rule 59(e), the motion will be denied.


The plaintiffs filed their complaint in the Superior Court on October 7, 2010. The complaint alleged that the defendants violated 42 U.S.C. § 1983 by willfully depriving the plaintiffs of their right under the Fourth Amendment to be free from unreasonable searches and seizures and their right to counsel under the Fifth Amendment. The plaintiffs served the complaint upon D.C. on October 8, 2010. They served Johnson and Frazier with the complaint on October 21 and 27, 2010, respectively. On November 3, 2010, the plaintiffs served Hilliard. Ballard v. D.C., Civil Action No. 10-1907 (RWR), 2011 WL 4406335, at *1 (D.D.C. Sept. 22, 2011).

D.C. removed the action on November 5, 2010, within the 30 days after service of process by which 28 U.S.C. § 1446(b) requires a removal notice to be filed.*fn1 Hilliard timely filed a removal notice on December 3, 2010. Hilliard's notice also asserted Frazier's and Johnson's consent to removal. However, by the time Hilliard filed his notice on December 3, more than 30 days had passed after Johnson and Frazier had been served.

Johnson's 30-day period ended on November 22, 2010.*fn2 (See Pls.' Reply in Support of Mot. to Remand at 4.) Frazier's 30-day period ended on November 26, 2010.*fn3

The plaintiffs moved to remand the matter to the Superior Court arguing that Johnson's and Frazier's consent was untimely. The defendants opposed remand but conceded that determining timeliness could be "problematic." (Defs.' Opp'n to Pls.' Mot. to Remand at 4.) They noted a "first-served rule," a "last-served rule," and an "intermediate rule" variously used to determine timeliness of removal. (Id. at 4-5.) They acknowledged that cases in this district discussing the rules adopted the intermediate rule,*fn4 but they urged this court to adopt the last-served rule. (Id. at 5, 7.) This court declined to do so and found that the defendants failed to consent timely, unanimously, and unambiguously to removal. Ballard, 2011 WL 4406335, at *2. The September 22, 2011 memorandum opinion and order ("September opinion and order") granting remand rejected the defendants' argument that Johnson's and Frazier's consent to removal satisfied the "last-served" rule, described as "allow[ing] each defendant to remove within thirty days of receiving service[] even if the notice of removal is not filed within thirty days of service upon the first-served defendant." Id. (internal quotation marks and citation omitted). The September opinion and order otherwise concluded that the equities favored remand, as all defendants were at all [relevant] times . . . represented by the D.C. Attorney General. From the moment of service upon D.C. on October 8, 2010, the Attorney General would have known to calculate the deadlines for all defendants to file notice of or consent to removal. The defendants have demonstrated no reason for the failure to comply with the removal statute and the cases in this court interpreting it.

Id. at *3.

Defendants now move to reconsider the ruling on the basis of two alleged errors. First, they argue that the September opinion and order misstated who filed the December 3rd notice, a fact they deemed key. Second, while they concede having failed properly to remove under the first-served and intermediate rules,*fn5 they challenge the finding "that the removal on December 3, 2010, was not proper under the last-served rule." (Defs.' Mem. in Support of Mot. for Reconsideration ("Defs.' Mem.") at 4.) The plaintiffs contend that this remand order is not reviewable since 28 U.S.C. § 1447(d) makes an order remanding a case to a state court unreviewable on appeal or otherwise. (Pls.' Opp'n to Defs.' Mot. for Reconsideration ("Pls.' Opp'n") at 3.) In the alternative, the plaintiffs argue that the defendants have provided no basis warranting reconsideration under Rule 59(e). (Id. at 5-8.) The plaintiffs also request attorneys' fees.*fn6 (Id. at 8-9.)



A. The remand statute's bar

Section 1447(c) provides that "[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[.]" 28 U.S.C. § 1447(c). The section "authorizes remands for lack of jurisdiction and defects in removal procedure (as § 1446 defines those procedural requirements)." Benson v. SI Handling Sys., Inc., 188 F.3d 780, 782 (7th Cir. 1999). "It is settled law that an untimely removal constitutes a defect in the removal process, and that a remand based upon such a defect is encompassed by section 1447(c)." Tipp v. AmSouth Bank, 89 F. Supp. 2d 1304, 1307 (S.D. Ala. 2000) (citing Things Remembered v. Petrarca, 516 U.S. 124, 127--28 (1995).) See also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (identifying defects in removal procedure as a ground for remand under § 1447(c)).

Section 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise[.]" 28 U.S.C. § 1447(d). "This language has been universally construed to preclude . . . reconsideration by the district court."*fn7 Seedman v. U.S. Dist. Court for Cent. Dist. of Cal., 837 F.2d 413, 414 (9th Cir. 1988). The Supreme Court has held that section 1447(d) "should be read in pari materia with section 1447(c), so that only remands based on the grounds specified in the latter are shielded by the bar on review mandated by the former." Powerex Corp. v. Reliant Energy Svcs., Inc., 551 U.S. 224, 229 (2007); accord Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345 (1976), overruled on other grounds in Quackenbush, 517 U.S. at 707. Thus, "only remand orders issued under § 1447(c) and invoking the grounds specified therein . . . are immune from review under § 1447(d)." Shapiro, 412 F.3d at 310 (internal quotation marks and citation omitted). If an order issues ...

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