Opinion
CIVIL ACTION NO. 03-10829-RWZ
December 29, 2003
MEMORANDUM OF DECISION
On April 3, 2000, plaintiff Tia McConnell was driving to work when she was pulled over for speeding by a State Trooper in Plymouth, Massachusetts. According to her Complaint, the Trooper instructed plaintiff to step out of her car, and shortly thereafter another Trooper, defendant Derrick Fernandes, arrived on the scene with a tow truck. Defendant told plaintiff that she had an outstanding arrest warrant for assault and battery on a police officer in Roxbury. When she asked if her social security number matched that of the person named in the warrant, defendant responded that it did. He then handcuffed her and took her to the Plymouth District Court, where she was processed and placed in a lock-up facility. Plaintiff was later released on personal recognizance and instructed to appear in Roxbury District Court the following day. At Roxbury District Court, the probation department's case file revealed that the person named on the warrant, also Tia McConnell, weighed more than twice as much as plaintiff, was one year older, and, contrary to defendant's representation, had a different social security number. Plaintiff was late for work on the day of her arrest, missed the entire next day in order to clear up the matter, suffered bruises from the handcuffs, and was forced to pay $100 to retrieve her automobile and $50 for speeding.
Plaintiff alleges that rather than speeding, she was in fact driving 55 miles per hour in a 65 zone.
In March 2003, plaintiff filed a four-count Complaint in Suffolk Superior Court against defendants Fernandes and the Commonwealth of Massachusetts ("Commonwealth"). Counts One and Two allege false imprisonment and negligence against the Commonwealth under a theory ofrespondeat superior. Counts Three and Four allege violations of 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H 11I, against Fernandes. Defendant Fernandes timely removed to this Court without the Commonwealth's consent. In his Notice of Removal, he wrote that
[t]he Commonwealth is not subject to the jurisdiction of this Court for the claims asserted in the complaint by virtue of the Eleventh Amendment to the United States Constitution. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 121 (1984). For this reason, it is not necessary to obtain the consent of the Commonwealth in this Notice of Removal, nor has the Commonwealth given its consent to removal. Hill v. City of Boston, 706 F. Supp. 966, 968 (1989) [sic].
Both defendants have now filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
The Commonwealth's motion, premised on its Eleventh Amendment immunity from suit, is conceded by all parties, although plaintiff suggests that this Court should remand the case to Suffolk Superior Court if it finds that the Commonwealth did not voluntarily waive immunity. The consent of all defendants is normally a prerequisite for removal jurisdiction.See 28 U.S.C. § 1446; see also Chicago. R.I. P. Ry. Co. v. Martin, 178 U.S. 245, 248 (1900); Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 393 (1998) (Kennedy, J., concurring) ("Removal requires the consent of all of the defendants."). A number of cases in this jurisdiction, however, have followed a "refined" rule of unanimity that requires the consent only of those parties who would be independently entitled to remove. See, e.g., Rey v. Classic Cars, 762 F. Supp. 421, 423 (D. Mass. 1991) ("[T]he failure of the Commonwealth of Massachusetts to consent to removal does not require that the case be remanded given that the eleventh amendment prohibits a suit against the Commonwealth in a federal court absent the Commonwealth's consent."). Nevertheless, it makes little sense to divide this case between federal and state courts. The state law claims are closely related to the federal claim; to the extent that defendant Fernandes violated plaintiff's constitutional rights, the Commonwealth may well be liable for negligence. Requiring the case to be litigated twice virtually assures that legal costs will outweigh the relatively small damages involved. It would run contrary to the rational and economical administration of justice to retain jurisdiction over the federal claim while remanding the others. Therefore, in the absence of the Commonwealth's consent to remove the case, the entire action will be remanded to state court.
Although defendant Fernandes argues in his motion to dismiss that he should be entitled to qualified immunity, citing Baker v. McCollan, 443 U.S. 137 (1979), and Brady v. Dill, 187 F.3d 104 (1st Cir. 1999), the Complaint does permit an inference that defendant saw that plaintiff's social security number was different from that of the person named in the warrant and arrested plaintiff knowing that she was not wanted for any crime. Such a circumstance would, of course, preclude a finding of qualified immunity at the motion to dismiss stage. Cf. Gay v. Wall, 761 F.2d 175, 178-79 (4th Cir. 1985) (distinguishing Baker v. McCollan where "defendants had actual knowledge of [plaintiff's] innocence, yet detained him until they could 'find the right man'").
Accordingly, defendant Commonwealth of Massachusetts's motion to dismiss is denied, and the case shall be remanded to the Massachusetts Superior Court for Suffolk County. Defendant Fernandes's motion to dismiss is left for the state court.