United States District Court, D. Massachusetts
A. DOE, minor child; and S. DOE, parent of minor child, A. DOE, Plaintiffs,
JEAN MCGUIRE, Executive Director, METCO, Inc.; METCO, Inc. Board of Directors, in their Individual and Official Capacity; JESSICA MURPHY, Director of Special Education, in her Individual and Official Capacity; AARON JONCAS, METCO, Inc., METCO Director, Town of Concord, in his Individual and Official Capacity; DIANA FROST RIGBY, Superintendent, Concord Public Schools, in her Individual and Official Capacity; and JOEL KRAKOW, PRS Specialist, Massachusetts Department of Elementary and Secondary Education DOE, in his Individual and Official Capacity, Defendants.
MEMORANDUM OF DECISION
WILLIAM G. YOUNG DISTRICT JUDGE
a minor child, and his parent S. Doe, on behalf of herself
and A. Doe (collectively, the “Does”), filed this
action in the Massachusetts Superior Court alleging
discrimination against A. Doe on the basis of his race and
disability. Three defendants removed the action to this
Court, and the Does moved to remand. On December 12, 2017,
this Court heard argument on the motion to remand and granted
the motion. This memorandum explains that ruling.
FACTUAL & PROCEDURAL BACKGROUND
action originated in the Massachusetts Superior Court sitting
in and for the County of Suffolk, where the Does filed a
complaint against the Board of Directors of the Metropolitan
Council for Educational Opportunity, Inc. (the “METCO
Board of Directors”) and Executive Director Jean McGuire
(“McGuire”); school officials Jessica Murphy
(“Murphy”), Aaron Joncas (“Joncas”),
and Diana Frost Rigby (“Rigby”); and
Massachusetts Department of Education official Joel Krakow
(“Krakow, ” and collectively, the
“Defendants”). The Does allege that the
Defendants deliberately discriminated against A. Doe on the
basis of race and disability by denying him access to the
public school system of Concord, Massachusetts, and they
assert causes of action under 42 U.S.C. § 1983, the
Americans with Disabilities Act, Section 504 of the
Rehabilitation Act of 1973, and Title VI of the Civil Rights
Act of 1964, in addition to various state and common law
claims. First Am. Compl. ¶¶ 45-88, ECF No. 1-1.
Joncas, and Rigby (the “Removing Defendants”)
were served with the complaint on September 11, 2017.
See State Ct. R. 3, ECF No. 6; Defs.' Opp'n
Pls.' Mot. Remand (“Defs.' First
Opp'n”) 3, ECF No. 15. On September 14, they
removed the case to federal court under its federal question
jurisdiction. Defs.' Notice Removal, ECF No. 1. McGuire,
Krakow, and the METCO Board of Directors were served on
September 14, September 22, and October 3, respectively.
See State Ct. R. 3; Exs., ECF No. 12. The Does moved
to remand, Pls.' Req. Remand (“Pls.' Mot.
Remand”), ECF No. 8, and four of the Defendants moved
to dismiss, Defs.' Mot. Dismiss, ECF No. 21; see
also Def. Krakow's Mot. Dismiss Pls.' First Am.
Compl., ECF No. 32.
argument, this Court first heard the motion to remand, as
such motions may implicate the Court's subject matter
jurisdiction. Because it ruled that the case ought be
remanded, it did not address (and presently expresses no view
on) the motion to dismiss. See, e.g., Gomes v.
Midland Funding, LLC, 839 F.Supp.2d 417, 420 (D. Mass.
2012) (Gorton, J.) (denying defendant's motion to dismiss
as moot upon granting plaintiffs' remand motion);
Pinnacle Serv. Sols. Grp., Inc. v. AXA Equitable Life
Ins. Co., 831 F.Supp.2d 523, 528 (D. Mass. 2011)
(Collings, M.J.) (reserving motion to dismiss for state court
after granting motion to remand).
Does claim that removal under 28 U.S.C. § 1441(a) was
improper because (i) the Defendants did not all consent to
the removal and (ii) the Court lacks subject matter
jurisdiction. Pls.' Mot. Remand 1-3. Because the
Defendants have not satisfied their burden of demonstrating
compliance with the unanimity requirement, the Court need not
address whether it otherwise has subject matter jurisdiction
over the claims.
Standard of Review
to 28 U.S.C. § 1446, a defendant wishing to remove an
action to federal court must file a notice of removal within
30 days of the defendant's receipt of the initial
pleading or summons. Where a complaint names multiple
defendants, all of the defendants must consent to the
removal. See 28 U.S.C. § 1446(b)(2)(A)
(“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 . . .
.”); Chicago, Rock Island and Pac. Ry. Co. v.
Martin, 178 U.S. 245, 248 (1900). Defendants generally
“are not required to join in the petition, ”
however, “if they have not yet been served with process
at the time the petition is filed.” Karpowicz v.
Blue Cross & Blue Shield of Mass., Inc., Civ. A. No.
96-10050-MLW, 1996 WL 528372, at *3 (D. Mass. Aug. 19, 1996)
“[t]he defect in the removal process resulting from a
failure of unanimity is not considered to be a jurisdictional
defect” and thus may be waived, a plaintiff has thirty
days in which to object and move to remand based on the
procedural defect. Esposito v. Home Depot U.S.A.,
Inc., 590 F.3d 72, 75 (1st Cir. 2009); see also
28 U.S.C. § 1447(c). Once a plaintiff so moves,
“the burden is upon the removing party to show . . .
that removal is proper.” Therrien v. Hamilton,
881 F.Supp. 76, 78 (D. Mass. 1995). In making such
determinations, courts ought bear in mind “the
principle that removal statutes are to be narrowly
construed.” Esposito, 590 F.3d at 76.
Consent to Removal
three of the six named defendants -- the three Removing
Defendants -- joined the notice of removal filed on September
14, 2017.See Defs.' Notice Removal.
The Removing Defendants claim, however, that the exclusion of
McGuire, Krakow, and the METCO Board of
Directors from the notice of removal is immaterial
because these parties had not yet been served. Defs.'
First Opp'n 3. Though they recognize that McGuire was in
fact served on September 14, the same day as the notice of
removal was filed, the Removing Defendants maintain that they
did not need to obtain her consent because there was no proof
of service on file with the Suffolk County Superior Court at
the time of removal. Defs.' Opp'n Mot. File Am. Mot.
Remand (“Defs.' Second Opp'n”) 1-2, ECF
No. 16. They ...