Colon v. Ashby

314 F. Supp. 3d 116
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 8, 2018
DocketCivil Action No. 17–1163 (DLF)
StatusPublished
Cited by10 cases

This text of 314 F. Supp. 3d 116 (Colon v. Ashby) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colon v. Ashby, 314 F. Supp. 3d 116 (D.C. Cir. 2018).

Opinion

DABNEY L. FRIEDRICH, United States District Judge

Before the Court is the plaintiffs' Motion to Remand. Dkt. 8. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

This suit arises from a professional boxing match between Prichard Colon and Terrel Williams. Compl. ¶¶ 1, 10, Dkt. 16 at 25-36. The match occurred on October *11917, 2015 at Eagle Bank Arena in Fairfax, Virginia. Id. ¶ 10. According to the complaint, the 23-year-old Prichard was an undefeated professional boxer "considered by many in the sport to be a future world champion."Id. ¶ 5; see Pls.' Mem. at 1, Dkt. 8-1. During the initial rounds of the fight, Williams allegedly "rabbit punched" Prichard, i.e. , he violated boxing rules by striking Prichard on the back of the neck and head, which can cause severe injury to the brain or spinal cord. Id. ¶ 27. In the sixth round, the referee warned Williams to stop hitting Prichard in the back of the head. Id. ¶ 30. In the seventh round, Williams allegedly punched Prichard in the back of the head again, and "Prichard fell to the canvas writhing in pain and holding the back of his head." Id. ¶ 32. The ringside doctor-Richard Ashby-then examined Prichard. Id. ¶¶ 32-35. According to the complaint, Prichard reported that he was dizzy and the back of his head hurt, which are symptoms of a brain bleed, but Dr. Ashby sent him back into the ring. Id. ¶¶ 34-36. Shortly after the fight, Prichard collapsed and was taken to the hospital. Id. ¶ 39. There, he was diagnosed with a large left-sided subdural hematoma, which required an emergent hemicraniectomy to relieve the brain swelling and evacuate the blood. Id. Tragically, Prichard never regained consciousness and he remained in a persistent vegetative state when this suit began. Id. ¶¶ 1, 40.

On May 3, 2017, the plaintiffs-Prichard's parents Nieves and Richard Colon, along with Sean Bogle as "legal guardian" of Prichard's property-filed suit in the Superior Court of the District of Columbia. Id. at 2. The complaint asserted negligence claims against four defendants: (1) the ringside physician Dr. Ashby; (2) Dr. Ashby's practice, Family Practices Medical Services, P.C.; (3) the fight promoter Headbanger's Promotions, Inc.; and (4) the fight promoter DiBella Entertainment, Inc. Id. at 1-2, ¶¶ 6-9, 41-49. Dr. Ashby and Family Practices filed an answer on June 12, 2017. Ashby Answer, Dkt. 16 at 14-24. In the answer, they "admit[ted] that Family Practices Medical Services, P.C. is a professional corporation through which Dr. Ashby operates a family medicine practice." Ashby Answer ¶ 7. On June 14, 2017, without the consent of Dr. Ashby and Family Practices, Headbangers filed a notice of removal because Headbangers incorrectly believed that Dr. Ashby and Family Practices had not been served and because Headbangers was unable to contact them. Notice of Removal ¶ 18, Dkt. 1; Suppl. to Notice of Removal ¶¶ 1-3, Dkt. 6. After discovering the error on June 15, 2017, Headbangers conferred with Dr. Ashby and Family Practices and obtained their oral consent to removal. Suppl. to Notice of Removal ¶¶ 2-3; Concurrence in Removal ¶¶ 1-2, Dkt. 10.

Following removal to this Court, Headbangers moved to dismiss the complaint, Dkt. 7, and the plaintiffs moved to remand, Dkt. 8. On the plaintiffs' request, see Dkt. 13, the Court stayed briefing on the motion to dismiss pending the resolution of the remand motion, see Minute Order of July 1, 2017. After the remand motion was fully briefed, Dr. Ashby and Family Practices moved on July 19, 2017 for leave to amend their answer. Dkt. 22. The case was reassigned to the undersigned judge on December 4, 2017. The Court then granted leave to amend the answer and ordered supplemental briefing on the remand motion. See Minute Order of January 18, 2018; Ashby Am. Answer, Dkt. 25.

II. LEGAL STANDARDS

"Ordinarily, the plaintiff is entitled to select the forum in which he wishes to proceed." Araya v. JPMorgan Chase Bank, N.A. , 775 F.3d 409, 413 (D.C. Cir. 2014). But a defendant may remove a civil *120action filed in state court to a federal district court that has original subject matter jurisdiction, including on the basis of diverse citizenship. 28 U.S.C. § 1441(a) ; see also id. § 1332(a). Under the forum-defendant rule, however, an "action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id. § 1441(b)(2) ; see Neal v. Brown , 980 F.2d 747, 747-48 (D.C. Cir. 1992) (" 28 U.S.C. § 1441(b)... permits removal when there is complete diversity of citizenship and no defendant properly joined and served is a citizen of the state in which the action is brought."). "Citizenship is determined at the date of filing." BGC Partners, Inc. v. Avison Young (Canada) Inc. , 115 F.Supp.3d 119, 125 (D.D.C. 2015) (citing Freeport-McMoRan, Inc. v. K N Energy, Inc. , 498 U.S. 426, 428, 111 S.Ct. 858, 112 L.Ed.2d 951 (1991) ).

The removing party bears the burden of showing that removal is proper. Walter E. Campbell Co. v. Hartford Fin. Servs. Grp., Inc. , 48 F.Supp.3d 53, 55 (D.D.C. 2014). When assessing a remand motion, "[c]ourts must strictly construe removal statutes, resolving any ambiguities regarding the existence of removal jurisdiction in favor of remand." Smith v. Hendricks , 140 F.Supp.3d 66

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314 F. Supp. 3d 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colon-v-ashby-cadc-2018.