United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, UNITED STATES DISTRICT JUDGE
reasons stated below, the Court directs The Bournwood
Hospital to file and serve either a motion or an answer to
the complaint. In the event that The Bournwood Hospital files
a motion, Plaintiff will have 14 days after the motion is
served to respond. The Court defers ruling on the pending
motions to dismiss until The Bournwood Hospital has answered
or filed its motion to dismiss.
August 31, 2016, Precious Okereke (“Okereke”),
proceeding pro se, filed a complaint against Six
Unknown Boston Police Officers (“the Removing
Defendants”), Boston Medical Center
(“BMC”), and The Bournwood Hospital in the
Middlessex Superior Court of the Commonwealth of
Massachusetts asserting various claims arising from an
incident in which Okereke was allegedly arrested and brought
to Boston Medical Center. [ECF No. 12].
September 23, 2016, counsel for The Bournwood Hospital (whose
true name is First Psychiatric Planners, Inc.) filed a notice
of appearance and notice of intent to file a motion to
dismiss. [ECF No. 12, p. 6]. On September 28, 2016, BMC
counsel filed a notice of appearance Id. On October
6, 2016, BMC filed a notice of intent to file a motion to
dismiss. Id. The same day, on October 6, 2016, the
Removing Defendants filed a Notice of Removal on the grounds
of federal question jurisdiction under 28 U.S.C. § 1331.
[ECF No. 1]. The Notice of Removal was Signed only by counsel
for the Removing Defendants.
October 14, 2016, co-defendant The Bournwood Hospital filed
in the instant action its Notice of Pending Motion to Dismiss
in State Court [ECF No. 5] stating that at the time of
removal, it had a motion to dismiss pending in the state
court, which Okereke opposed. Although The Bournwood Hospital
filed a motion to dismiss in state court, the motion has not
been filed in this federal court, nor has The Bournwood
Hospital otherwise answered.
October 24, 2016, a motion to dismiss for failure to state a
claim was filed by the Removing Defendants [ECF No. 8]. Two
days later, on October 26, 2016, BMC filed a motion to
dismiss for failure to state a claim. [ECF No. 10].
though Okereke has not challenged removal, the Court has a
duty to inquire, sua sponte, into its subject matter
jurisdiction. See Arbaugh v. Y & H Corp., 546
U.S. 500, 506 (2006).
removal statute provides that “any civil action brought
in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the
United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. §
1441(a). The procedure for removal is set out in Section
1446, and provides, in relevant part, that “when 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.” 28
U.S.C. § 1446(b)(2)(A) (2011) (emphasis added). Section
1447(c) provides parties thirty days from removal in which to
seek remand, but requires remand “at any time before
final judgment [if] it appears that the district court lacks
subject matter jurisdiction.” 28 U.S.C. § 1447(c).
procedures for removal are to be strictly construed.”
Syngenta Crop. Prot., Inc. v. Henson, 537 U.S. 28,
32 (2002); see also Danca v. Private Health Care Sys.,
Inc., 185 F.3d 1, 4 (1st Cir. 1999). In general, courts
will only allow removal with the unanimous consent of all
defendants. Chicago, Rock Island & Pac. Ry. Co. v.
Martin, 178 U.S. 245, 248 (1900); Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72, 75 (1st Cir. 2009).
This “rule of unanimity” has been codified in the
2011 amendments to Section 1446. Griffioen v. Cedar
Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1186 (8th
Cir. 2015) (citing Federal Courts Jurisdiction and Venue
Clarification Act of 2011, Pub.L. 112-63, § 103, 125
Stat. 758, 760 (codified as amended at 28 U.S.C. §
the co-defendants have not explicitly consented to removal, a
remand is not necessary because this Court has federal
question jurisdiction over plaintiff's civil rights
claims and the parties failed to bring a timely motion to
remand. Courts have held that violation of the unanimity rule
is a procedural, not a jurisdictional, defect that is waived
if not objected to within thirty days after removal.
See 28 U.S.C.§ 1447(c); see also
Esposito, 590 F.3d at 77 (one defendant's failure to
consent to the other defendant's notice of removal within
the statutory 30 day time limit constituted a defect in
procedure, rather than jurisdiction); Universal Truck
& Equip. Co. v. Southworth-Milton, Inc., 765 F.3d
103, 110 (1st Cir. 2014) (citing Parrino v. FHP,
Inc., 146 F.3d 699, 703 (9th Cir.1998) (“one
defendant's failure to consent to removal within 30 days,
as required by § 1446(b)(2)(A) & (B), was not fatal
to federal court adjudication”)); Samaan v. St.
Joseph Hosp., 670 F.3d 21, 28 (1st Cir. 2012) (by
failing to object to a procedural defect within 30 days of
removal, defendant waived any such objection pursuant to
§ 1447(c)); Ellenburg v. Spartan Motors Chassis,
Inc., 519 F.3d 192, 198 (4th Cir. 2008)
(“[s]ection 1447(c) effectively assigns to the parties
the responsibility of policing non-jurisdictional questions
regarding the propriety of removal, permitting them to assert
a procedural defect or to waive the defect if they choose to
remain in the federal forum”).
no party brought a timely motion to remand based on a defect
in the removal procedure, and any objection is therefore
waived. Wright & Miller, Fed. Prac. & Proc. §
3739 (noting that even a district court's sua