WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendants DeKalb County, T.S. Hunt, S.L. Slade, and W.L. Wallace's Motion to Dismiss for Failure to State a Claim [2], Plaintiff Antwan Wheeler's Motion to Remand to State Court [5] and Second Motion to Remand to State Court [26], Plaintiff's Motion to Stay Proceedings [11], and Defendant Q.D. Hudson's Motion to Dismiss the Complaint for Insufficiency of Process [24]. Also before the Court are Plaintiff's Motions for Extension of Time to File a Response [19], for Leave to File Excess Pages [21], and for Leave to File a Short Sur-Reply [29].
On November 18, 2013, Plaintiff Antwan Wheeler ("Plaintiff") filed an action against the Defendants in the State Court of DeKalb County, Georgia, alleging various state law causes of action as well as violations of his civil rights under 42 U.S.C. § 1983. The claims all arise from Plaintiff's claimed arrest on December 23, 2010, and his subsequent detention. Plaintiff's Complaint asserts numerous allegations against the "Defendants" generally, but it does not identify which acts or omissions Defendants engaged in or for which they are responsible.
On December 19, 2013, Defendants DeKalb County, T.S. Hunt, S.L. Slade, and W.L. Wallace (the "Removal Defendants") filed their Notice of Removal to this Court. The Removal Defendants stated in their Notice of Removal that "[a]ll the remaining defendants are expected to consent to removal." (Notice of Removal [1] ¶ 4.)
On December 24, 2013, the Removal Defendants moved to dismiss Plaintiff's Complaint, alleging that the Complaint is an impermissible shotgun pleading. On January 1, 2014, Plaintiff moved to remand the action to State court, contending that Defendant Q.D. Hudson ("Hudson") did not join in the removal and that the rule of unanimity was not satisfied. On January 2, 2014, Plaintiff moved to stay, pending the ruling on his Motion to Remand.
On March 26, 2014, Hudson filed his Notice of Removal and Consent to Removal [23]. In these pleadings, he "authorized [his attorney] to waive service of the summons and process and respond" to the Complaint. (Notice of Removal [23] ¶ 1.)
On March 26, 2014, Hudson moved to dismiss Plaintiff's claims against him based on insufficient service of process. Hudson alleged that Plaintiff sought to deliver his pleadings to Hudson's mother and sister at their residence. Hudson has provided several exhibits showing that he did not live at the residence at which Plaintiff attempted to serve him.
After Hudson's Notice of Removal was filed, on April 4, 2014, Plaintiff filed his second Motion to Remand to State Court.
The parties do not dispute that the Court has federal question subject-matter jurisdiction over Plaintiff's Section 1983 claims. Plaintiff argues, however, that this action must be remanded because removal was untimely and because not all Defendants consented to removal. Plaintiff contends that he perfected service on Hudson, and that Hudson did not consent to removal within the required thirty-day period, violating the unanimity rule in 28 U.S.C. § 1446(b)(2)(A).
Under the removal statute, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant" to federal court. 28 U.S.C. § 1441(a).
"When a civil action is removed [to a federal court with jurisdiction arising] solely under section 1441(a), 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). Section 1446 further provides: "Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons [in § 1446(b)(1)] to file the notice of removal."
"The unanimity rule [of Section 1446(b)(2)(A) generally] requires that all defendants consent to and join a notice of removal in order for it to be effective."
"The requirement that there be unanimity of consent in removal cases with multiple defendants does not require consent of defendants who have not been properly served."
The record here supports that the Removal Defendants—all of whom had been served with Plaintiff's Complaint by the date of removal—consented to the removal when the Notice of Removal was filed. The question that remains is whether Hudson had been served with the Complaint by the date of the Notice of Removal, and if so, whether Hudson had consented to the removal. Hudson contends that he was not a party to the lawsuit when the Removal Defendants removed Plaintiff's action to this Court, because he was never properly served.
Georgia's law regarding personal service of process provides:
O.C.G.A. § 9-11-4(e)(7). A return of service creates a presumption that a defendant was properly served, but evidence that service failed to comply strictly with the statute overcomes the presumption raised by the service return.
Plaintiff did not, on December 1, 2013, satisfy the requirements of Section 9-11-4(d)(7). The evidence presented by Hudson regarding the attempt to serve Hudson on December 1, 2013, rebuts the presumption of service that arose from Plaintiff's filing of the return of service. Hudson did not, on December 1, 2013, live at the residence where the process server left the Summons and Complaint. Hudson provided the Court with bills, an affidavit, and a letter from his employer, which demonstrate that he did not live at the residence at which the process server sought to serve Hudson by leaving a copy of the Summons and Complaint with his family members.
The Court concludes that, because Hudson was not a defendant "who [h]ad been properly joined and served" at the time of removal, Hudson was not required to join in or consent to removal when the Removal Defendants filed their Notice of Removal in this action. Removal thus satisfied the requirements of the unanimity rule, and Plaintiff's Motions to Remand are denied.
Hudson also contends that the action against him must be dismissed for improper service of process, because it is undisputed that he was never personally served at his residence. For the reasons discussed here, the Court finds that Hudson was not properly served within the time period for service. Hudson filed his Notice of Removal and Motion to Dismiss for improper service in this Court, and by doing so indicated his intention to assert his jurisdictional defense.
On January 2, 2014, Plaintiff moved to stay the proceedings in this action until the resolution of Plaintiff's Motion to Remand. The Removal Defendants' Motion to Dismiss has been fully briefed, however, and is now ripe for review. Accordingly, Plaintiff's Motion to Stay Proceedings [11] is denied as moot.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a "short and plain statement of the claim" that shows that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The failure to identify claims with sufficient clarity to enable the defendant to frame a responsive pleading constitutes a "shotgun pleading" that violates Rule 8(a)(2).
The Removal Defendants contend that Plaintiff's Complaint is a shotgun pleading that does not conform to Rule 8(a)(2) of the Federal Rules of Civil Procedure. The Removal Defendants argue that the Complaint should be dismissed on this basis. Plaintiff contends that his pleading is sufficient under Georgia law and that, even if it is not acceptable in its current form, the Court should permit him to re-plead.
Once an action has been removed to federal court, the Federal Rules of Civil Procedure govern the action.
Plaintiff's action has been properly removed to this Court, and his Complaint is required to meet the pleading standards of Rule 8(a)(2). Plaintiff does not contest that his Complaint does not meet the federal requirements,
Accordingly, for the foregoing reasons,