Brown v. Keene, N H , et al.

2004 DNH 173

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.

3

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.