ALLISON D. BURROUGHS, District Judge.
For the reasons stated below, the Court directs The Bournwood Hospital to file and serve either a motion or an answer to the complaint. In the event that The Bournwood Hospital files a motion, Plaintiff will have 14 days after the motion is served to respond. The Court defers ruling on the pending motions to dismiss until The Bournwood Hospital has answered or filed its motion to dismiss.
On August 31, 2016, Precious Okereke
On September 23, 2016, counsel for The Bournwood Hospital (whose true name is First Psychiatric Planners, Inc.) filed a notice of appearance and notice of intent to file a motion to dismiss. [ECF No. 12, p. 6]. On September 28, 2016, BMC counsel filed a notice of appearance
On October 14, 2016, co-defendant The Bournwood Hospital filed in the instant action its Notice of Pending Motion to Dismiss in State Court [ECF No. 5] stating that at the time of removal, it had a motion to dismiss pending in the state court, which Okereke opposed. Although The Bournwood Hospital filed a motion to dismiss in state court, the motion has not been filed in this federal court, nor has The Bournwood Hospital otherwise answered.
On October 24, 2016, a motion to dismiss for failure to state a claim was filed by the Removing Defendants [ECF No. 8]. Two days later, on October 26, 2016, BMC filed a motion to dismiss for failure to state a claim. [ECF No. 10].
Even though Okereke has not challenged removal, the Court has a duty to inquire, sua sponte, into its subject matter jurisdiction.
The removal statute provides that "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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The procedure for removal is set out in Section 1446, and provides, in relevant part, that "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 of the action." 28 U.S.C. § 1446(b)(2)(A) (2011) (emphasis added). Section 1447(c) provides parties thirty days from removal in which to seek remand, but requires remand "at any time before final judgment [if] it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c).
"[S]tatutory procedures for removal are to be strictly construed."
Although the co-defendants have not explicitly consented to removal, a remand is not necessary because this Court has federal question jurisdiction over plaintiff's civil rights claims and the parties failed to bring a timely motion to remand. Courts have held that violation of the unanimity rule is a procedural, not a jurisdictional, defect that is waived if not objected to within thirty days after removal.
Here, no party brought a timely motion to remand based on a defect in the removal procedure, and any objection is therefore waived. Wright & Miller, Fed. Prac. & Proc. § 3739 (noting that even a district court's sua sponte remand is barred after the expiration of the 30-day period).
Based upon the foregoing, it is hereby ORDERED that The Bournwood Hospital Defendant has 14 days from the date of this Order to file and serve either a motion or an answer to the complaint. In the event The Bournwood Hospital files a motion, Plaintiff will have 14 days after the motion is served to respond. The Court defers ruling on the pending motions at this time.