United States District Court, D. Columbia.
RONALD E. JENKINS, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants
For RONALD E. JENKINS, SHARON JENKINS, Plaintiffs: Gregory L. Lattimer, LEAD ATTORNEY, LAW OFFICES OF GREGORY L. LATTIMER, PLLC, Washington, DC.
For DISTRICT OF COLUMBIA GOVERNMENT, JUSTIN M. TRUBY, MICHAEL DAVIS, Defendants: Kerslyn D. Featherstone, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC.
MEMORANDUM OPINION AND ORDER
CHRISTOPHER R. COOPER, United States District Judge.
Competition for parking spaces in Washington, D.C. can be fierce. So it was on Labor Day of 2013 when Plaintiffs Ronald and Sharon Jenkins allege a coveted spot was stolen from them by another driver outside a popular seafood restaurant. After the Jenkins exchanged words with the other driver, the police arrived, questioned the couple, and ultimately arrested Mr. Jenkins. Aggrieved by their supposed mistreatment, the Jenkins filed suit against two police officers and the District of Columbia in D.C. Superior Court, alleging federal civil rights violations and several common law torts. One of the officers
removed the case to this Court and the Jenkins have filed a motion to remand. Because the Court concludes that the second officer did not consent to removal within the time required by 28 U.S.C. § 1446, it will grant the Jenkins' motion and remand the case to the Superior Court. The Court will deny the Jenkins' request for attorney's fees.
The Jenkins filed their suit in the District of Columbia Superior Court on August 25, 2014, claiming false arrest, negligent supervision, and assault and battery against all defendants, and for violations of 42 U.S.C. § 1983 against the individual officers, Michael Davis and Justin M. Truby. Compl. ¶ ¶ 16-28. The Jenkins served a copy of the summons and complaint on the District on October 10, served Officer Davis on October 13, and served Officer Truby on October 19. Pls. Exs. 1-4 (Affidavits of Service). The Superior Court docket reflects that the Jenkins filed proof of service as to the District on October 10, 2014 and as to Officer Truby on October 20, 2014. Pls. Ex. 6 (Superior Court Docket). With no proof of service having been filed as to Officer Davis, the court issued an order of dismissal on October 29, 2014 pursuant to Superior Court Rule of Civil Procedure 4(m), which requires a plaintiff to file proof of service as to each defendant within 60 days of the filing of the complaint. Id. The Jenkins filed a motion to vacate the order of dismissal on November 5, and the court reopened the case on November 10, requiring the Jenkins to file proof of service as to Officer Davis. Id. Officer Davis removed the case to this Court that same day, with the District's consent, and Officer Truby filed a separate notice consenting to the removal on December 1. The Jenkins then filed a motion to remand the case to the Superior Court, contending that the Defendants failed to timely remove the case.
In reviewing the motion to remand, the Defendants bear the burden of proving federal court jurisdiction, Bhagwanani v. Howard Univ., 355 F.Supp.2d 294, 297 (D.D.C. 2005), and the Court strictly construes the procedural requirements to remove an action, Ballard v. District of Columbia, 813 F.Supp.2d 34, 38 (D.D.C. 2011). The Defendants removed this case pursuant to 28 U.S.C. § 1441(a), based on the Jenkins' federal law claim. Thus, each defendant had 30 days after service on that defendant to file the notice of removal, and all defendants were required to join or consent to that notice. 28 U.S.C. § 1446(b)(2). Any earlier-served defendant was permitted to consent to a notice of removal filed by a later-served defendant " even though that earlier-served defendant did not previously initiate or consent to removal." Id. at § 1446(b)(2)(C).
The Jenkins contend the case should be remanded to the Superior Court because the Defendants did not comply with the procedural requirements of 28 U.S.C. § 1446. Specifically, they argue that the District failed to file a notice of removal or consent to another defendant's notice of removal within 30 days from when the District received service of the complaint. They also contend that Officer Truby failed to file a notice of consent within 30 days from his receipt of service, also requiring a remand. The Jenkins lastly ask for attorney's fees for the costs of filing this motion. The Court will address each of the Jenkins' arguments in turn.
A. The District's Consent to Removal
The Jenkins claim that the District of Columbia should have either filed a notice of ...