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Pattison v. State ex rel. Nevada Department of Corrections

United States District Court, D. Nevada

June 3, 2014

DANTE H. PATTISON, Plaintiff,
v.
THE STATE OF NEVADA, ex rel. NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.

ORDER

MIRANDA M. DU, District Judge.

I. SUMMARY

This removed prisoner civil rights action comes before the Court on Plaintiff Dante Pattison's motion to remand. (Dkt. no. 5.) Plaintiff contends that the action should be remanded because: (a) all of the defendants did not join in the removal; and (b) there is no federal question jurisdiction because he allegedly presented only state law claims in the complaint.

II. BACKGROUND

On January 9, 2014, the State of Nevada ex rel. the Nevada Department of Corrections (the "State") filed the notice of removal. The State represented in the notice of removal that it had been served on December 10, 2013. The State further represented that the remaining six defendants had not joined in the removal because, to the best of its counsel's knowledge, the remaining defendants had not yet been properly served.

On January 22, 2014, the Clerk received and filed Plaintiff's motion to remand. Plaintiff attached a copy of a return of service reflecting that defendant Donni Jennings had been served on December 3, 2013, one week prior to service on the State. Plaintiff asserted in the motion that none of the defendants had consented to the removal. No evidence has been presented to the Court that any defendant other than the State and Jennings had been served at the time of the January 9, 2014, removal.

Defendant Jennings filed a notice of consent to the removal on February 6, 2014, within thirty (30) days of the notice of removal.

Thereafter, four defendants who were served subsequent to the removal filed joinders in the removal. Defendant Grant Lee was served on or about January 15, 2014, and filed a joinder on February 6, 2014. Defendant Cole Morrow was served on or about February 13, 2014, and filed a joinder on February 26, 2014. Defendant Francis Chelli was served on or about March 20, 2014, and filed a joinder on March 31, 2014. Defendant Kara Krause was served on May 15, 2014, and filed a joinder on May 27, 2014.

The record does not reflect that the remaining defendant, Bruce Bannister, has been served and/or has filed a joinder in the removal.

III. JOINDER IN THE REMOVAL

Under 28 U.S.C. § 1446(a)(2)(A), "[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action." Accordingly, all properly joined defendants who also were properly served at the time of the removal must timely join in or consent to the removal. See, e.g., Knight v. Mooring Capital Fund, LLC, ___ F.3d ___, 2014 WL 1592225, at *2 (10th Cir. April 22, 2014); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 (9th Cir. 1988). A defendant may join in or consent to the removal either within the notice of removal or in a separate document reflecting joinder or consent. See, e.g., Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009). However, the question of when a defendant's separate joinder or consent must be filed to be timely does not appear to be definitively established in the Ninth Circuit, particularly following recent amendments to the removal procedure statute.

By way of comparison, the Fifth Circuit has held that a defendant served at the time of the removal must join in or consent to the removal within the thirty days allowed for the filing of the removing defendant's notice of removal. See, e.g., Getty Oil Corp. v. Insurance Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir. 1988). In the present case, the application of such a rule would mean that Jennings' February 6, 2014, notice of consent would be untimely because the State's thirty (30) days to remove expired on January 9, 2014 - the same day that the State removed the action.

The Fifth Circuit's holding in Getty Oil was grounded in that Circuit's previously established rule that the thirty-day removal period runs for all defendants from the date on which the first defendant is served. 841 F.2d at 1263. The Ninth Circuit, however, declined to follow the "first-served rule" underlying the holding in Getty Oil. In Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011), the Ninth Circuit instead adopted the "later-served" rule, holding that each defendant had thirty (30) days from service on that defendant to remove an action, without regard to whether another defendant had been served earlier. See 630 F.3d at 955-56.

Thereafter, in amendments to 28 U.S.C. § 1446 effective on January 6, 2012, Congress both: (a) adopted the later-served rule as controlling statutory law; and (b) provided that earlier-served defendants could consent to a later-served defendant's notice of ...


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