United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE.
Medicine Solutions operates Lung Institute clinics across
several states. Tammy Rivero and Howard Bennett each paid the
Tampa Lung Institute for stem cell treatment but without - or
so the plaintiffs allege - a satisfactory result. On August
17, 2016, Rivero sued (Doc. 5-1 at 58) Lung Institute in
state court under Florida statutory and common law and
alleged the deceptive marketing of an ineffectual medical
treatment. Rivero amended (Docs. 5-1 at 16 and 5-5 at 50) the
complaint twice. Neither the complaint nor the first and
second amended complaints mentions RMS (apparently, the
corporate parent of Lung Institute). On December 15, 2017,
Rivero again amended (Doc. 2 at 1) the complaint to add
Bennett as a plaintiff and to allege claims against, and to
request relief from, RMS. (Doc. 1 at 1-2) But, oddly and
unaccountably, the third amended complaint fails to name RMS
as a defendant (and the plaintiff failed to serve RMS), and
the third amended complaint persists in naming Lung Institute
as the sole defendant.
weeks later, RMS purported to remove (Doc. 1) the action and
cited in the notice of removal both the general removal
statute and the Class Action Fairness Act. Characterizing
itself under the novelty “de facto defendant, ”
RMS asserts that “[b]ecause Plaintiffs seek
‘judgment' and ‘damages' against
‘de facto defendant' RMS in the Third Amended
Complaint, RMS is a party defendant that is entitled to
exercise its procedural due process rights under 28 U.S.C.
§§ 1332, 1441, & 1446, as amended by [the Class
Action Fairness Act].” (Doc. 1 at 3) The plaintiffs
move (Doc. 18) under 28 U.S.C. § 1332(d)(3) for a
discretionary remand, which is opposed (Doc. 23) by the
“defacto defendant” RMS. None of the complaints,
including the third amended complaint, includes allegations
suggestive of an attempt by the plaintiffs - under any of
several possible legal theories - to disregard the
corporateness of Lung Institute.
9, 2018 order (Doc. 28) states that “confusion about
RMS's role, if any, in this litigation impedes the
resolution of the motion [to remand]” and directs the
plaintiffs to amend the complaint either to name RMS as a
defendant or to omit the claims against RMS. The plaintiffs
amended (Doc. 30) the complaint and omitted the claims
recapitulate: a corporate person (RMS) who is not a party to
this action filed a notice of removal, which under present
rules immediately removed the action to the district court.
The named defendant in the action has never itself either
removed or formally joined in, or even consented to, the
non-party's purported removal.
RMS, a non-party, cannot remove the action.
“the defendant or the defendants” can remove an
action under 28 U.S.C. § 1446. Mitskovski v. Buffalo
& Fort Erie Pub. Bridge Auth., 435 F.3d 127, 132 n.4
(2d Cir. 2006). Under 28 U.S.C. §§ 1453(b),
“A class action may be removed to a district court of
the United States in accordance with section 1446 . . .
such action may be removed by any defendant without the
consent of all defendants.” A district court lacks
subject-matter jurisdiction if a non-party removes an action.
Housing Authority of City of Atlanta, Ga. v.
Millwood, 472 F.2d 268, 272 (5th Cir. 1973). “A
non-party, even one that claims to be a real party in
interest, lacks the authority to institute removal
proceedings.” De Jongh v. State Farm Lloyds,
555 Fed.Appx. 435, 437 (5th Cir. 2014) (per curiam).
complaint and the four amended complaints name Lung Institute
as the sole defendant. Because the plaintiffs never named RMS
as a defendant to the state court action, RMS improperly
removed the action.
Lung Institute fails in the attempt to retroactively receive
the benefit of RMS's putative but failed removal
the general removal procedure statute [28 U.S.C. §
1446(b)(1)], a notice of removal must ordinarily be filed
within 30 days after receipt of the initial pleading or
service of summons. If the case stated by the initial
pleading is not removable, the notice of removal may be filed
within 30 days after receipt of an amended pleading or other
paper from which it may first be ascertained that the case is
or has become removable . . . . This 30-day requirement
applies to removal of class actions under CAFA.”
Moore's Federal Practice, Vol. 16, §
107.91[a] (3d ed. 2016). On August 18, 2016, Rivero served
(Doc. 34-1 at 1) Lung Institute with the original complaint
(Doc. 5-1 at 58), which alleges facts sufficient to establish
the action's removability under CAFA. No. later than
September 19, 2016, Lung Institute could have removed the
action, but Lung Institute elected not to remove the action.
June 19, 2018, twenty-one months after the deadline for Lung
Institute to remove the action, almost six months after RMS
removed the action, almost five months after the plaintiffs
moved to remand, and just over four months after RMS
responded to the motion to remand, Lung Institute submitted
(Doc. 32) a notice, which states that “the Lung
Institute joins and adopts RMS's opposition to
plaintiffs' motion to remand. The arguments apply equally
to the Lung Institute.” (Doc. 32 at 1) This paper is
not a removal or a joinder in removal or even a consent to
removal but is an adoption of arguments against remand.
plaintiffs respond that RMS's arguments “do not
apply equally to the Lung Institute” because the latter
failed to remove the action within the necessary thirty-day
limit (Doc. 34 at 1-2). The plaintiffs state correctly that
the defendant's support for removal:
is based on removal by a non-party, non-intervenor,
non-participant of this action. RMS's removal was
initially improper. However, Lung Institute continues to rely
on the motion of a non-party, non-intervenor,
non-participant. By way of adopting and joining RMS's
opposition to Plaintiff's motion to remand, Lung
Institute is effectively seeking to insert itself as the
removing party. However, since Lung Institute's 30-day