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Euwema v. Osceola County

United States District Court, M.D. Florida, Orlando Division

December 5, 2019

DAVID EUWEMA; and CHARYL EUWEMA, Plaintiffs,
v.
OSCEOLA COUNTY; OSCEOLA COUNTY FIRE RESCUE & EMS; ORANGE COUNTY; ORANGE COUNTY FIRE & RESCUE; CITY OF ST. CLOUD; CITY OF ST. CLOUD FIRE & RESCUE; CITY OF KISSIMMEE; CITY OF KISSIMMEE FIRE DEPARTMENT; and SCOTT KILMER, Defendants.

          ORDER

          ROY B. DALTON, UNITED STATES DISTRICT JUDGE.

         Following Defendants Orange County and Orange County Fire & Rescue's (collectively, “Orange County Defendants”) removal of this case (Doc. 1 (“Notice”)), Plaintiffs David and Charyl Euwema move to remand. (Doc. 37 (“Motion”).) Most Defendants oppose.[1] (Docs. 47, 50, 51, 52.) On review, the Motion is granted.

         I. Background

         This case stems from Defendants' response to a fire at Plaintiffs' home. (See Doc. 1-1.) On July 28, 2016, a neighbor called 9-1-1 reporting a fire on Plaintiffs' porch in unincorporated Osceola County, Florida. (Doc. 1-1, ¶¶ 21-24.) Plaintiffs say the fire was “contained to the front porch[, ] . . . was considerably small, and was nearly snuffed-out.” (Id. ¶ 23.) Units from Defendants Osceola County Fire Rescue, Kissimmee Fire Department, St. Cloud Fire Rescue, and Orange County Fire Rescue were dispatched. (Id. ¶ 24.) Plaintiffs claim Defendants' actions (and inactions) upon arrival caused the home to burn to the ground and were in part because of Plaintiffs' unidentified disabilities. (Id. ¶¶ 25-29.) So Plaintiffs sued Defendants in state court for negligence and violations of the Americans with Disabilities Act (“ ADA”) and 42 U.S.C. § 1983. (Id. ¶¶ 5 1 -290.)

         On September 9, 2019, the Orange County Defendants-with Defendants Osceola County, Osceola County Fire Rescue & EMS, City of St. Cloud, and City of St. Cloud Fire Rescue's consent-removed the case under 28 U.S.C. § 1441(a) as Plaintiffs raised claims falling under federal question jurisdiction, such as ADA and § 1983 claims. (See Doc. 1, ¶¶ 4, 8; see also Id. at 4.) The Notice stated the Orange County Defendants were unaware of whether any other Defendants had been served, including Defendant Scott Kilmer and the Kissimmee Defendants. (See Id. ¶ 5.) The consenting Defendants then moved to dismiss the complaint. (See Docs. 9, 10, 35.) Defendant Scott Kilmer appeared and: (1) moved to seal, remove, or redact his home address from the record; (2) moved to dismiss the complaint; (3) moved to strike certain claims and damages requests; (4) and filed documents in compliance with Court orders. (Docs. 11, 12, 19, 20, 26, 33, 34.) Mr. Kilmer also filed a notice of consent to removal on October 8, 2019. (Doc. 36.)

         Plaintiffs seek remand, arguing the Orange County Defendants' removal violated 28 U.S.C. § 1446(b)(2)'s unanimity requirement because the Notice wasn't joined by all properly served Defendants. (Doc. 37.) Briefing complete (Docs. 47, 50, 51, 52, 64), the matter is ripe.

         II. Legal Standards

         Removal jurisdiction exists when the court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). For removal to be proper, the removing party must comply with certain procedural requirements. See 28 U.S.C. § 1446. For example, “the law is well settled that in cases involving multiple defendants, all defendants must consent to the removal of a case to federal court.” Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1049 (11th Cir. 2001) (citations omitted), abrogated on other grounds by Overlook Gardens Props., LLC v. ORIX USA, L.P., 927 F.3d 1194 (11th Cir. 2019); 28 U.S.C. § 1446(b)(2)(A). “The failure to join all defendants in the petition is a defect in the removal procedure.” In re Bethesda Mem'l Hosp., 123 F.3d 1407, 1410 n.2 (11th Cir. 1997).

         A plaintiff may seek to remand an action back to state court based on a “procedural defect in the removal of the case.” Russell Corp., 264 F.3d at 1043-44 (citations omitted). Because of “significant federalism concerns arising in the context of federal removal jurisdiction, ” removal rules such as the unanimity requirement must be “strictly interpreted and enforced.” Id. at 1049. “[A]mbiguities are generally construed against removal, ” Jones v. LMR Int'l, Inc., 457 F.3d 1174, 1177 (11th Cir. 2006) (citation omitted), and “uncertainties are resolved in favor of remand.” See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (citations omitted). If procedural defects are present, remand is appropriate. See 28 U.S.C. § 1447(c).

         III. Analysis

         At issue is whether the Orange County Defendants' removal violated 28 U.S.C. § 1446(b)(2)'s unanimity requirement. (See Doc. 37.) To satisfy the unanimity requirement, “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); see also Russell Corp., 264 F.3d at 1044. “[E]ach defendant must join in the removal by signing the notice of removal or by explicitly stating for itself its consent on the record, either orally or in writing, within the thirty day period prescribed in § 1446(b).” Gay v. Fluellen, No. 8:06-cv-2382-T-3 0MSS, 2007 WL 676219, at *2 (M.D. Fla. Mar. 1, 2007) (citations omitted). The thirty-day period is calculated from “the date of service on that defendant or the removing defendant (whichever is later).” Rodgers v. Atl. Contracting & Dev. Corp., No. 2:07-cv-533-FtM-34DNF, 2008 WL 11334891, at *3 (M.D. Fla. Sept. 3, 2008) (citing Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1204-05, 1206 n.8 (11th Cir. 2008)). On review, the Orange County Defendants' removal was procedurally defective.

         The Notice reveals the Orange County Defendants removed this case without the consent of three Defendants. (See Doc. 1, ¶¶ 4-5.) At the time of removal, the Orange County Defendants “[were] unaware if and when other remaining Defendants may have been served” since the state court record didn't reflect service and they hadn't appeared. (See Id. ¶ 5.) But “courts in the Eleventh Circuit have specifically recognized that the fact the removing defendant was unaware a defendant had been served does not provide a basis for excusing the removing defendant's failure to obtain consent from that defendant.” Rodgers, 2008 WL 11334891, at *4 (citations omitted). So if a ny of the three non-consenting Defendants were properly served at the time of removal and failed to timely consent, this is a procedural defect to removal warranting remand. See 28 U.S.C. § 1446(b)(2)(A); 28 U.S.C. § 1447(c).

         As service on the Kissimmee Defendants is disputed (see Doc. 46), let's start with Defendant Scott Kilmer. Mr. Kilmer was served on September 5, 2019-before the removal. (See Doc. 37-1, p. 6.) It's undisputed this service was proper as counsel has appeared on Mr. Kilmer's behalf, he has filed multiple motions and other documents, and no pending motion challenges service. (See Docs. 8, 11, 12, 19, 20, 26, 33, 34, 36.) Mr . Kilmer filed his “Consent to Removal” expressing his consent on October 8, 2019 (see Doc. 36)-over thirty days after he was served. See Rodgers, 2008 WL 11334891, at *3 (discussing the thirty-day consent period).[2] Because Mr. Kilmer didn't timely consent, a procedural defect exists. See Russell Corp., 264 F.3d at 1044; see also Rodgers, 2008 WL 1133481, at *4-7. And Mr. Kilmer's eventual consent is too little too late because it doesn't cure the defect. See Rodgers, 2008 WL 1133481, at *7 (noting “the fact that [a defendant] ultimately filed the required consents is not sufficient to cure the procedural defect.”).

         Seemingly recognizing the untimeliness of Mr. Kilmer's “Consent to Removal, ” the consenting Defendants argue he timely consented based on his conduct before the thirty-day window closed. (See Doc. 47, pp. 4-6; see also Doc. 50, pp. 4-5; Doc. 51; Doc. 52, p. 4.) They claim Mr. Kilmer consented by acknowledging and assenting to this Court's jurisdiction through, for example, moving to seal and moving to dismiss. (See, e.g., Doc. 47, pp. 4-6.) But not every action in this Court constitutes consent to removal. Instead, “each defendant must join in the removal by signing the notice of removal or by explicitly stating for itself its consent on the record, either orally or in writing.” Gay, 2007 WL 676219, at *2 (emphasis added). Consent must be clear and unambiguous. See Hill Dermaceuticals, Inc. v. RX Sols., United Health Grp., Inc., No. 6:08-cv-330-Orl-31KRS, 2008 WL 1744794, at *4 (M.D. Fla. Apr. 11, 2008) (citation omitted). Mr. Kilmer's litigation conduct doesn't qualify a s his filings are silent on con sent to removal. (See Docs. 11, 12, 20, 33, 34); see also, e.g., Diebel v. S.B. Trucking Co., 262 F.Supp.2d 1319, 1329 (M.D. Fla. 2003) (answering doesn't constitute sufficient consent); Zarr v. Luce, No. 8:13-cv-1441-T-30AEP, 2013 WL 3581909, at *3 (M.D. Fla. July 11, 2013) (stating that ...


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