Spoon v. Fannin County Community Supervision & Corrections Department

794 F. Supp. 2d 703, 2011 U.S. Dist. LEXIS 70972
CourtDistrict Court, E.D. Texas
DecidedJune 30, 2011
DocketCase No. 4:10-cv-00556
StatusPublished
Cited by14 cases

This text of 794 F. Supp. 2d 703 (Spoon v. Fannin County Community Supervision & Corrections Department) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spoon v. Fannin County Community Supervision & Corrections Department, 794 F. Supp. 2d 703, 2011 U.S. Dist. LEXIS 70972 (E.D. Tex. 2011).

Opinion

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO REMAND AND DENYING OTHER MOTIONS

RICHARD A. SCHELL, District Judge.

Before the court are the following matters: (1) Plaintiff Glenda Spoon’s “Motion to Remand” (Dkt. 9), along with responses, replies and surreplies; (2) Spoon’s request for fees (Dkt. 9); and (3) Spoon’s “First Amended Motion for Leave to File Surrebuttal to Defendants’ Surreply to Plaintiffs Motion to Remand” (Dkt. 17). For the reasons discussed below, Spoon’s motion to remand is GRANTED; her other two motions are DENIED.

I. Background

Until she was fired on June 23, 2010, Spoon was a probation officer with the Fannin County Community Supervision and Corrections Department (FCCS). Spoon alleges that she was fired because she reported to Defendant Richard Glaser, the Fannin County Criminal District Attorney, that several state laws were being violated within FCCS. Spoon’s lawsuit, which was filed in state court on September 20, 2010, includes claims under the Texas Whistleblowers Act, the First Amendment to the U.S. Constitution, and 42 U.S.C. §§ 1983 and 1985. See Dkt. 2. On October 18, 2010, Defendants FCCS, [705]*705Laurine Blake, and Debra Roberts (the removing Defendants) filed a notice of removal in this court (Dkt. 1).

II. Spoon’s Motion to Remand

On November 12, 2010, Spoon filed the instant motion to remand (Dkt. 9). The basis for Spoon’s motion is an alleged procedural defect in the Defendants’ removal of this case. The procedure governing removal is found in 28 U.S.C. § 1446. Under Section 1446(b), notice of removal must be filed within thirty days of a defendant’s receipt of service. While not stated explicitly in the statute, in cases with multiple served defendants, all defendants must consent to removal prior to the expiration of the thirty day period. Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir.2002).1 This requirement is frequently referred to as the “rule of unanimity.” The Fifth Circuit has further established that the thirty day period starts to run as soon as the first defendant is served. Getty Oil Corp. v. Ins. Co. of North Amen, 841 F.2d 1254, 1262-63 (5th Cir.1988). If the removing parties fail to comply with the rule of unanimity, or any other procedural requirement for removal, the plaintiff may move for remand within thirty days of removal. 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal....”).

Spoon’s motion argues that the Defendants’ removal lacks unanimity because Defendant Glaser did not sign the notice of removal (Dkt. 1), nor did he file anything within the thirty day notice period indicating his consent to the removal. Therefore, Spoon argues, the removal is defective and the case must be remanded to state court. The Defendants respond by arguing that Spoon’s argument is “hyper-technical,” Dkt. 10, § 1 (Glaser’s response), and they point to the following statement in the notice of removal as sufficiently demonstrating unanimous consent for removal:

“The removing Defendants have obtained written consent to this removal from the remaining Defendant, Mr. Richard Glaser, who has been served and who joins in this removal.”

Dkt. 1 at ¶ 9. The Defendants further rely on a letter that Glaser’s counsel sent to counsel for the removing Defendants shortly before the notice of removal was filed, which stated that Glaser “consents to and joins in the intended removal [and that] [b]ased on our discussions, you will file the removal documents.” Dkt. 10-2. The letter was not filed with the court until Glaser attached it as an exhibit to his response to Spoon’s motion to remand, after the thirty day notice period had expired. Id. For the following reasons, the court agrees with Spoon and finds that Glaser failed to properly consent to the removal.

The court first notes that “[blecause removal raises significant federalism concerns, the removal statute is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.2008) (internal quotation and citation omitted). “District courts have no power to overlook procedural errors relating to the notice of removal; instead, a district court must remand a case which was removed pursuant to a procedurally defective notice.” Harden v. Field Mem. Cmty. Hosp., 516 F.Supp.2d 600, 606 [706]*706(S.D.Miss.2007) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). “ ‘[T]he view that technical flaws in a removal petition can be swept away ... seriously misunderstands the conditions under which the formidable power of the federal judiciary can — and should — be invoked .... These considerations are certainly more substantive than the simplistic notion that procedural flaws should be overlooked merely because they are procedural.” Smith v. Union Nat’l Life Ins. Co., 187 F.Supp.2d 635, 645-46 (S.D.Miss. 2001) (quoting Prod. Stamping Corp. v. Maryland Cas. Co., 829 F.Supp. 1074, 1077-78 (E.D.Wis.1993)). Accordingly, the court rejects the notion that the argument underlying Spoon’s motion to remand is “hyper-technical.” See Dkt. 10, § 1.

As the parties seem to acknowledge in their briefs, the starting point for analyzing this dispute is the Fifth Circuit’s decision in Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254 (5th Cir.1988). Plaintiff Getty Oil brought a state court suit against Insurance Company of North America (INA), Companies Collective, and NL Industries, Inc. After INA filed a timely notice of removal to federal district court, Getty Oil moved to remand the case, arguing that NL had not joined in the removal petition until fifty-one days after the first defendant in the case had been served, well after expiration of the thirty day notice period. In response, INA argued that the timeliness of NL’s eventual joinder did not matter because NL had in fact consented to removal at the time INA submitted its original notice of removal, and that the notice expressly asserted that NL did not oppose and consented to the removal. The Fifth Circuit rejected INA’s argument, stating:

But while it may be true that consent to removal is all that is required under section 1446, a defendant must do so itself.

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794 F. Supp. 2d 703, 2011 U.S. Dist. LEXIS 70972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spoon-v-fannin-county-community-supervision-corrections-department-txed-2011.