United States District Court, D. Massachusetts
ORDER ON PLAINTIFFS' MOTION TO REMAND AND
DEFENDANT'S MOTION TO DISMISS
Dennis Saylor IV, United States District Judge.
action comes before the Court in an unusual and somewhat
convoluted procedural posture. On January 10, 2014, Jean and
Marsby Warters filed a complaint against the Massachusetts
Department of Transportation and the U.S. Department of
Transportation (“USDOT”) in Bristol County
Superior Court. (Def. Opp. to Pl. Mot. for Remand Ex.
In substance, plaintiffs contend that they are entitled to
compensation and other damages arising out of a highway
improvement project that affected their residential property
in Fairhaven, Massachusetts. Plaintiffs are proceeding
contend that USDOT was timely served with the original
complaint and offer documentary evidence to that effect. (Pl.
Mot. to Remand Attachment A). USDOT contends that it has not
determined whether it was ever properly served with the first
complaint. In any event, more than two years elapsed, during
which the litigation apparently proceeded against the state
defendant, the Massachusetts Department of Transportation.
USDOT did not file an answer, conduct discovery, attend
conferences, or otherwise participate in the litigation.
(Def. Opp. to Pl. Mot. for Remand). Plaintiffs, however, did
not move for a default judgment or seek other sanctions
against USDOT. (Id.)
August 25, 2016, plaintiffs filed an amended complaint
against both defendants in the state court. (Id. at
Dkt. No. 10). USDOT does not dispute that it was served with
the amended complaint.
September 16, 2016, USDOT filed a notice of removal in this
Court pursuant to 28 U.S.C. § 1442. The notice indicates
that USDOT requests removal only as to itself, and not as to
the state defendant. (Notice of Removal ¶ 10).
filing the notice of removal in this Court, USDOT did not
file a notice of removal with the clerk of the state court
for more than two months. (Pl. Rep. to Def. Mem. Ex. 1).
See 28 U.S.C. § 1446(d) (such notice shall be
filed “[p]romptly” with the state court).
October 17, 2016, plaintiffs brought this motion to remand
the action to state court.
October 21, 2016, USDOT moved to dismiss the action on the
ground that this Court does not have subject-matter
jurisdiction over the claim, because the Uniform Relocation
Assistance and Real Property Acquisition Policies Act, 42
U.S.C. §§ 4601 et seq., provides the
exclusive procedure and remedy for such a claim. Plaintiffs
have not opposed the motion to dismiss. USDOT opposed the
motion to remand on the ground that the Court should address
the motion to dismiss first.
November 8, 2016-53 days after USDOT filed a notice of
removal in this Court, but before it had filed a notice in
state court-plaintiffs voluntarily dismissed USDOT in the
state court action. (State Dkt. No. 17). That dismissal was
duly recorded on the docket in the state court.
on November 25, 2016, USDOT filed the notice of removal in
state court. (State Dkt. No. 19).
it is clear that this action should not proceed in this
Court, the path to that result is somewhat tangled.
begin, USDOT did not comply with the removal statute. That
statute, 28 U.S.C. § 1446(d), provides that
“promptly” after a defendant files a notice of
removal in federal court, the defendant shall give written
notice to all adverse parties, and “shall file a copy
of the notice with the clerk of such State court, which shall
effect the removal and the State court shall proceed no
further unless and until the case is remanded.”
Pursuant to that statute, the federal court does not obtain
exclusive jurisdiction over the action until after
the notice is filed with the state court, effecting the
removal. Instead, “the jurisdiction of the federal
court attaches as soon as the petition for removal is filed
with it, and . . . both state and federal courts have
jurisdiction until the process of removal is
completed.” Berberian v. Gibney, 514 F.2d 790,
792-93 (1st. Cir. 1975) (finding that a state court's
entry of default against a defendant after the defendant had
filed a notice of removal in federal court but before it
filed the notice in state court was effective).
for a period of 70 days, between September 16 and November
25, 2016, the Bristol County Superior Court and this Court
had concurrent jurisdiction over this action. During that
period, on November 8, 2016, plaintiffs entered a voluntary
dismissal of USDOT that was recorded on the state court
docket. That dismissal became effective when it was entered
on the state docket and “is to be treated as if it were
entered by this Court.” Sindi v. El-Moslimany,
2014 WL 1281522, at *2 (D. Mass. Mar. 26, 2014). Accordingly,
USDOT has not been a party to this case since November 8,
2016, and its motion to dismiss that was filed in this Court
has become moot.
the removing party has been dismissed, the Court must next
consider whether the motion to remand has become moot. As
noted, USDOT attempted to remove this case only as to itself,
and not as to the state defendant, pursuant to 28 U.S.C.
§ 1442. USDOT has not indicated that the state defendant
consented to removal. Under § 1442(a)(1), federal
officers, agencies, and the United States may remove civil or
criminal actions commenced against them in state court. A
removal under 28 U.S.C. § 1442(a)(1) constitutes an
“exception to the general rule that removals must be
unanimously agreed to by the defendants.” Hilbert
v. McDonnell Douglas Corp., 529 F.Supp.2d 187, 195 (D.
Mass. 2008). See also Akin v. Ashland Chem. Co., 156
F.3d 1030, 1034 (10th Cir. 1998); Ely Valley Mines, Inc.
v. Hartford Accident and Indem. Co.,644 F.2d 1310, 1315
(9th Cir. 1981); Fowler v. Southern Bell Tel. & Tel.
Co.,343 F.2d 150, 152 (5th Cir. 1965). By its plain
terms, § 1442(a)(1) likewise permits removal by a
federal agency without the consent of all defendants. See
O'Callaghan v. United States, 686 F.Supp.2d 826, 828
(N.D. Ill. 2010) (interpreting the plain language of §
1442 to permit removal by the United States without the
consent of co-defendants). The effect of removal by a federal
agency defendant is to “remove the entire case.”
Hilbert v. McDonnell Douglas Corp., 529 F.Supp.2d
187, 195 (D. Mass. 2008). See also Fowler, 343 F.2d
at 152 (“it is settled that the filing of a petition
for removal by a single federal officer removes the ...