Brown v. Keene, N H , et al.

2004 DNH 173

• Court: District Court, D. New Hampshire
• Decided: November 30, 2004
• Docket: CV-04-306-SM
• Status: Published

Opinion

Brown v . Keene, N H , et a l . CV-04-306-SM 11/30/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Margaret Brown and Melissa Brown, Plaintiffs

v. Civil N o . 04-306-SM Opinion N o . 2004 DNH 173 City of Keene; Keene Police Department; Officer Darryl Madden; Trooper Joseph DiRusso; and Richard Flynn, Director Department of Safety, Defendants

O R D E R

Margaret and Melissa Brown sued the City of Keene, the Keene

Police Department, and Officer Darryl Madden (“the Keene

defendants”), as well as Trooper Joseph DiRusso and Richard

Flynn, Director of the New Hampshire Department of Safety (“the

State defendants”) in the New Hampshire Superior Court. Because

plaintiffs’ claims implicate federal subject matter jurisdiction,

the Keene defendants removed the case to this court.

The Keene defendants served the State defendants with a copy

of their petition for removal, but did not obtain the State

defendants’ consent to remove the case. See Mem. of Law in Support of Mot. to Dismiss (attachment n o . 1 to document n o . 4 )

at 4 . Indeed, the State defendants mildly complain that they

were not consulted by the Keene defendants before the case was

removed.

It is well established that “removal statutes are strictly

construed” against removal. Danca v . Private Health Care Sys.,

Inc., 185 F.3d 1 , 4 (1st Cir. 1999) (citing Shamrock Oil & Gas

Corp. v . Sheets, 313 U.S. 1 0 0 , 108-09 (1941)). “Where there are

multiple defendants, all must consent or join in the petition for

removal.” Hill v . Phillips, Barratt, Kaiser Eng’g Ltd, 586 F.

Supp. 9 4 4 , 945 (D.N.H. 1984) (citations omitted). Here, removal

was plainly improper given the absence of prior consent by the

State defendants. The time period in which the State defendants

could properly join in the removal petition has long since

passed. See 28 U.S.C. § 1446(b). Accordingly, this case is

remanded to the New Hampshire Superior Court on grounds of

improper removal. The State defendants’ pending motion to

dismiss (document n o . 5 ) is moot given the order of remand.

2 SO ORDERED.

Steven J. McAuliffe United States District Judge

November 3 0 , 2004

cc: Kathleen M . Mulcahey-Hampson, Esq. Donald E . Gardner, Esq. Nancy J. Smith, Esq.