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Doe v. McGuire

United States District Court, D. Massachusetts

January 31, 2018

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.




         A. Doe, 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.


         This 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”)[1] and Executive Director Jean McGuire (“McGuire”); school officials Jessica Murphy (“Murphy”), Aaron Joncas (“Joncas”), and Diana Frost Rigby (“Rigby”)[2]; 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.

         Murphy, 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.

         At oral 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).


         The 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.

         A. Standard of Review

         Pursuant 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) (Wolf, J.).

         While “[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.

         B. Consent to Removal

         Only three of the six named defendants -- the three Removing Defendants -- joined the notice of removal filed on September 14, 2017.[3]See Defs.' Notice Removal. The Removing Defendants claim, however, that the exclusion of McGuire, Krakow, and the METCO Board of Directors[4] 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 ...

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