UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_____________________________ ) EDWARD D. BALLARD, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 10-1907 (RWR) ) THE DISTRICT OF COLUMBIA, et ) al., ) ) Defendants. ) _____________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiffs, the family of decedent Yiana-Michelle Ballard,

have moved to remand to the Superior Court of the District of

Columbia this wrongful death action originally filed there

against the District of Columbia (“D.C.”), Detective Charles

Hilliard, and D.C. Child and Family Services Agency employees

Kenneth Frazier and William Johnson.1 The defendants oppose the

motion under the “last-served” rule governing deadlines for

consent to removal, arguing that all defendants consented within

thirty days of service of the complaint upon the last-served

defendant. Because the equities counsel in favor of remand

whether the “last-served,” “first-served,” or “intermediate” rule

is applied, the motion will be granted.

1 All individual defendants were named in their individual and official capacities. (Notice of Removal (“Notice”), Ex. 2 at ¶¶ 8-10.) -2-

BACKGROUND

Plaintiffs filed suit in Superior Court on October 7, 2010.

(See Notice of Removal (“Notice”), Ex. 1 at 1.) The D.C.

Attorney General’s office has represented all defendants at all

times relevant to this action. On October 8, 2010, the

plaintiffs served the complaint upon defendant D.C. (Notice, Ex.

4 at 1; Pls.’ Mem. in Supp. of Mot. to Remand (“Pls.’ Mem.”) at

1.) The plaintiffs served the complaint on Johnson on

October 21, 2010, on Frazier on October 27, 2010, and on Hilliard

on November 3, 2010. (Notice, Ex. 6 at 1, Ex. 5 at 1; Pls.’ Mem.

at 1; Defs.’ Opp’n at 2-3.)

On November 5, 2010, D.C. filed a notice of removal in this

court. (Notice at 2-3.) An amended notice of removal reflecting

Hilliard’s consent was filed on December 3, 2010. (Am. Notice of

Removal (“Am. Notice”) at 2.) The amended notice also asserted

Frazier’s and Johnson’s consent to removal. (Am. Notice, Ex. 4

at 3.) On November 12, 2010, between the filing of the original

and the amended notices of removal, all defendants moved for an

extension of time to respond to the complaint. (Defs.’ Mot. for

an Extension of Time to Respond to the Compl. (“Defs.’ Mot.”) at

1.)

The plaintiffs have moved to remand the case to the Superior

Court, challenging as untimely Johnson’s and Frazier’s consent to

removal and requesting reimbursement of attorney’s fees and costs

incurred as a result of the remand. (Pls.’ Mem. at 3.) The -3-

defendants oppose the motion. They argue that Johnson and

Frazier “impliedly consented to removal” by joining the

defendants’ November 12, 2010 motion for an extension of time

within thirty days of service upon them.2 (Defs.’ Opp’n at 3.)

The defendants also argue, consistent with the “last-served” rule

described below, that Johnson and Frazier expressed timely,

independent, and unambiguous consent to removal in Hilliard’s

amended notice. (Id. at 7.)

DISCUSSION

I. REMAND

A state court defendant may seek to remove an eligible

matter to the federal district court for the district in which

the action is pending.

(a); accord Lindsay v.

Gov’t Emps. Ins. Co.,

(D.C. Cir. 2006). Within

thirty days after service of the complaint, the defendant must

file a notice of removal.

(b). Where there are

multiple defendants, “removal requires the unanimous [and

unambiguous] consent of all [served] defendants[.]”3 Ficken v.

2 The defendants offer no authority for the theory of implied consent to removal, or for the proposition that joining a motion constitutes the unambiguous consent required by the statute governing removal,

(b). 3 “[N]ominal or formal party-defendant[s]” are excepted from the unanimity rule. Cho, 547 F. Supp. 2d at 30 (citing

(c)). Because Johnson, Frazier, and Hilliard were sued in their official and individual capacities, the analysis of the defendants’ consent to removal is confined to their filings in their individual capacities. -4-

Golden,

(D.D.C. 2010); Ok Yeon Cho v.

D.C.,

(D.D.C. 2008). Courts in this

circuit have construed removal jurisdiction strictly, favoring

remand where the propriety of removal is unclear. See, e.g.,

Queen v. Schmidt, Civil Action No. 10-2017 (RMU),

, at *1 (D.D.C. Sep. 14, 2011) (citing Shamrock Oil & Gas

Corp. v. Sheets,

(1941)). However, the D.C.

Circuit has not yet determined “when the time to obtain consent

to removal runs” in multiple-defendant cases. See Williams v.

Int’l Gun-A-Rama,

, 100 n.2 (2nd Cir. 2011).

Other circuits have split on the issue, announcing “first-

served,” “last-served,” and “intermediate” rules.4 Barbour v.

Int’l Union,

(4th Cir. 2011). The Fifth

Circuit has adopted the first-served rule, under which “all

served defendants must consent to removal no later than thirty

days from the day on which the first defendant was served.”

Williams,

n.2 (internal citation and

quotation marks omitted). “[T]he Sixth, Eighth, and Eleventh

Circuits follow the last-served defendant rule, which allows each

defendant to remove within thirty days of receiving service[]”

even where “the first-served defendants failed to effect a timely

removal.”

(internal citations omitted); Princeton Running,

4 The Eleventh Circuit has noted that “the trend in recent caselaw favors the last-served defendant rule.” Bailey v. Janssen Pharm. Inc.,

(11th Cir. 2008). -5-

Co., Inc. v. Williams, Civil Action No. 05-1461 (PLF),

, at *2 (D.D.C. Sept. 5, 2006) (citing Brierly v.

Alusuisse Flexible Packaging, Inc.,

(6th Cir.

1999)). Finally, in the Fourth Circuit, the “[i]ntermediate

[r]ule requires a notice of removal to be filed within the first-

served defendant’s thirty-day window, but gives later-served

defendants thirty days from the date they were served to join the

notice of removal.” Barbour,

(citing McKinney v.

Bd. of Tr. of Mayland Cmty. Coll.,

(4th Cir. 1992)).

Judges in this court have applied the intermediate rule. See,

e.g., Elkalibe v. Ibiza Nightclub DC, LLC, Civil Action No. 10-

2186 (ESH),

, at 2 n.3 (D.D.C. April 13, 2011)

(citing Princeton Running,

, at *2); Phillips v.

Corr. Corp. of Am.,

(D.D.C. 2005).

There is no need to decide which rule applies here because

under any rule, the defendants failed to consent timely,

unanimously, and unambiguously to removal. Under the first-

served rule, all defendants would have had to consent to removal

within thirty days of the date of service upon D.C. See Getty

Oil Corp. v. Ins. Co. of N. Am.,

(5th Cir.

1988). Plaintiffs served D.C. with the complaint on October 8,

2010. While the first-served rule would require all defendants

to have petitioned for or consented to removal by November 8,

2010, none of the individually-named defendants consented until

December 3, 2010. Defendants likewise find no recourse in the -6-

last-served rule, which “allows 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. Williams,

n.2. (See also Pls.’

Reply at 11-12.) Defendants D.C. and Hilliard each complied with

this thirty-day deadline. (Defs.’ Opp’n at 2-3; but see Pls.’

Reply at 4-5 (stating that Hilliard’s “right to remove was waived

by his [earlier-served] co-defendants” for their failure to meet

their thirty-day deadlines).) Defendants Johnson and Frazier

concededly did not (see Defs.’ Opp’n at 3, 7), and their joining

a motion for an extension to respond to the complaint was not an

unambiguous statement of removal. The two were served with the

complaint on October 21 and 27, 2010, respectively, and neither

unambiguously consented to removal until December 3 of that year.

(Pls.’ Reply at 4.) Finally, the defendants failed to satisfy

the intermediate rule, under which each later-served defendant

has thirty days -- from the date of service upon him –- to

consent to removal, so long as the first-served defendant has

petitioned for removal within thirty days of receiving service.

Princeton Running Co.,

, at *2-*3. As has been

noted, Johnson and Frazier failed to consent to removal within

that thirty-day window.

In deciding which rule to apply, courts often consider the

equities —- or inequities –- that “flow from” it. See, e.g.,

Barbour,

. Indeed, courts created the last-served -7-

rule “based upon equitable concerns of fairness[.]” Ballard

Nursing Ctr., Inc. v. GF Health Prods., Inc., No. 07-C-5715,

(N.D. Ill. Nov. 14, 2007.) Here, all defendants were

at all times relevant to this action 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. That presents a procedural defect

fatal to removal. See, e.g., Loftis v. United Parcel Serv.,

(6th Cir. 2003) (“Failure to obtain unanimous

consent forecloses the opportunity for removal under Section

1446.”). (See also Pls.’ Reply at 5.) Concerns of equity and

fairness therefore warrant a remand to the Superior Court.

II. ATTORNEYS’ FEES

“Under

(c), a district court may require

payment of just costs and any actual expenses including attorney

fees, incurred as a result of the removal.” Nat’l Consumers

League v. Gen. Mills, Inc.,

(D.D.C.

2010) (internal citation and quotation marks omitted). “Absent

unusual circumstances, a district court may award attorney’s fees

when remanding a removed case only if the removing party lacked

an objectively reasonable basis for seeking removal.” Knop v.

Mackall,

(D.C. Cir. 2011) (quoting Martin v. -8-

Franklin Capital Corp.,

(2005)). “Conversely,

when an objectively reasonable basis exists, fees should be

denied.” Williams,

(internal citation and

quotation marks omitted). “Objective reasonableness is evaluated

based on the circumstances as of the time that the case was

removed.”

(internal quotation marks and citations omitted).

In this circuit, costs and expenses associated with removal are

awarded “[w]here non-removability is obvious or contrary to

well-settled law[.]” Nat’l Consumers League,

.

The defendants argue that “based on [the] [p]laintiffs’

claims under

[,] . . . the [d]efendants . . . had

an objectively reasonable basis for removal.” (Defs.’ Opp’n at

8.) The plaintiffs’ reply does not address or rebut that

argument. A civil action filed in the Superior Court of which

the federal district court has original jurisdiction, such as an

action founded on a claim arising under a federal statute, is

removable.

(a), (b). Plaintiffs’

claim did provide an objectively reasonable basis for

removal, even though the plaintiffs’ failure to achieve removal

in full compliance with the removal statute doomed the success of

their effort. The defendants have satisfied the objectively

reasonable basis for removal standard sufficiently to block an

award to plaintiffs of fees and costs. -9-

CONCLUSION

The defendants’ procedurally faulty removal efforts failed

to satisfy the requirements of the removal statute, and the

equities favor remand. The plaintiffs’ motion to remand this

action to the Superior Court will be granted. All remaining

motions will be left for decision by the Superior Court.

Accordingly, it is hereby

ORDERED that the plaintiffs’ motion [4] to remand be, and

hereby is, GRANTED. The Clerk is directed to remand this case to

the Superior Court of the District of Columbia.

SIGNED this 22nd day of September, 2011.

/s/ RICHARD W. ROBERTS United States District Judge