Opinion
Case No. N99-2 CV (JWS)
December 21, 1999
I. MOTION PRESENTED
At docket 13, defendant Alaska Airlines, Inc. ("Alaska Airlines") seeks reconsideration of this court's order at docket 12 which remanded this case to state court. Defendant Tim Edenshaw ("Edenshaw") joins Alaska Airlines' motion at docket 14. Plaintiff Ethel Toshvik ("Toshvik") files an opposition at docket 19. Oral argument has not been requested and would not assist the court.
II. BACKGROUND
This is an employment dispute. Toshavik filed suit on August 17, 1999, in the Superior Court for the State of Alaska, Second Judicial District at Kotzebue. The complaint was served on Alaska Airlines on August 26, 1999. Edenshaw's lawyer accepted service of the summons and complaint on August 26, 1999. Alaska Airlines filed a timely notice of removal to this court on September 22, 1999. Edenshaw did not join the notice of removal. The notice of removal did not explain or address why Edenshaw did not join in removal. Toshavik filed a timely motion to remand at docket 6. Alaska Airlines opposed the motion. Edenshaw did not join Alaska Airlines' motion. This court determined that remand was appropriate because Edenshaw had never joined the notice of removal. Edenshaw filed a consent to removal on November 19, 1999 approximately two months after the statutory thirty-day period expired. Other facts are noted below.
Notice of Removal, docket 1, ¶ 1 at 2.
See Certified Mail Return Receipt submitted as an unmarked exhibit with Toshavik's Opposition to Motion for Reconsideration at docket 19.
Docket 1.
Order, filed November 15, 1999, docket 12.
III. STANDARD OF REVIEW
Removal statutes are strictly construed against removal and any doubts regarding removal must be resolved against removal and in favor of remand. If at anytime after removal "it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." The removing party bears the burden of proof and persuasion. Doubtful or close cases should be remanded.
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
14C Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure, § 3739, at 424, 470 (3d ed. 1998) ("Wright").
Wright, § 3739, at 446.
IV. DISCUSSION
D. Ak. LR 7.1(l) does not establish a standard governing when parties may seek reconsideration or when the court should exercise its discretion to grant reconsideration. However, as a question of judicial efficiency, reconsideration should only be sought or granted if the court has overlooked or misconceived some controlling legal authority, principle of law, or material fact directly bearing upon the litigated issue.Removal jurisdiction is analyzed on the basis of the record existing at the time when the notice of removal is filed. Alaska Airlines concedes that all defendants must join a notice of removal. The Ninth Circuit follows this rule. Failure to join all defendants renders a removal notice procedurally defective.
Wright, § 3739 at 468; see also Sparta Surgical Corp. v. National Association of Securities Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998).
See Alaska Airlines' Motion for Reconsideration, docket 13 at 3; see also14C Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure, § 3731 at 258-65 (3d. ed. 1998) (citing authorities) ("Wright").
See, e.g., Emrich v. Touche Ross Co., 846 F.2d 1190, 1193 n. 1 (9th Cir. 1988) (for discussion of relevant principles with citation to authority).
Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998).
In Parrino v. FHP, Inc., one defendant did not join the notice of removal until two months after the notice was filed. The district court denied a motion to remand. A divided panel of the Ninth Circuit affirmed. The majority held that where not all defendants had originally joined a notice of removal, the Court of Appeals could treat a procedurally defective notice of removal as cured if the non-joining defendant joined the notice of removal prior to entry of judgment. Judge Fernandez dissented.
146 F.3d 699 (9th Cir. 1998).
I am unable to agree with the majority because in my opinion the removal of this case was improper. Friendly Hills was required to join in the removal request within a thirty-day period. It did not do so. That failure made removal improper, the case should have been remanded, and it should be remanded now.
Parrino, 146 F.3d at 707 (citation omitted).
Judge Fernandez further explained that permitting non-joining defendants to subsequently join a notice of removal contravened statutory procedures and replaced those procedures "with a rule that the district court may, in its discretion, decline to remand when those procedures are not complied with." Judge Fernandez questioned whether district courts should be permitted to amend the removal statutes through the exercise of their discretion. In response to Judge Fernandez's dissent, the majority qualified its opinion:
Id.
Id.
We do not, as the dissent suggests, read Caterpillar to authorize district courts to ignore the procedural requirements for removal: to the contrary, we agree with Caterpillar that "[t]he procedural requirements for removal remain enforceable by the federal trial court judges to whom those requirements are directly addressed." We understand Caterpillar merely to permit the Court of Appeals to treat as cured a procedural defect in the removal process corrected before entry of judgment.
Parrino, 146 F.3d at 703 n. 1 (citation omitted).
More recently, in Prize Frize, Inc. v. Matrix (U.S.), Inc., the Ninth Circuit reversed a district court's denial of a motion to remand where not all defendants had joined the notice of removal. The court emphasized that the "removal statute is strictly construed against removal jurisdiction." The court noted that "[w]here fewer than all the defendants have joined in a removal action, the removing party has the burden under section 1446(a) to explain affirmatively the absence of any co-defendants in the notice for removal." Because the removing party had not adequately explained why all co-defendants had not joined the notice of removal, remand was mandated under the statute. This result followed even though some of the co-defendants were challenging sufficiency of service.
167 F.3d 1261 (9th Cir. 1999).
Prize Frize, 167 F.3d at 1265 (citing Emrich v. Touche Ross Co., 846 F.2d 1190, 1195 (9th Cir. 1988)).
Prize Frize, 167 F.3d at 1266.
Alaska Airlines argues that Parrino controls this case. It is frankly difficult to reconcile Alaska Airlines' interpretation of Parrino with established precedent and the removal statute. The removal statute requires notices of removal to be filed within thirty days. This has been uniformly interpreted as requiring all defendants to join a notice of removal. The thirty-day period is strictly enforced and may not be extended by agreement of the parties or court order. The removal statute is strictly construed against removal. Any doubts regarding removal must be resolved against removal and in favor of remand. Alaska Airlines did not explain in its notice of removal why Edenshaw did not join the notice. This failure, on its own, renders removal deficient. If one accepted Alaska Airlines' interpretation of Parrino, then district courts would be free to rewrite the removal statute and ignore long-established precedent. This seems questionable in light of the underlying principles governing removal. One court succinctly summarized the reasons why courts should not liberally construe the removal statute:
Prize Frize, 167 F.3d at 1266.
Cohen v. Hoard, 696 F. Supp. 564, 566 (D. Kansas 1988) (citing authority and discussing relevant principles).
Gaus, 980 F.2d at 566.
Id.; see also Wright, § 3739 at 446.
Romashko v. AVCO Corp., 553 F. Supp. 391, 392 (N.D.Ill. 1983).
Three reasons are traditionally given for the general unwillingness of courts to expand upon these statutory provisions. First, removal of civil cases to federal court is, quite simply, an infringement on state sovereignty. Consequently, federal courts have concluded that the statutory provisions regulating removal must be strictly applied and that the federal judiciary cannot extend the jurisdiction of its courts beyond the boundaries set by those provisions. Second, state courts are generally courts of general jurisdiction while federal courts are courts of limited jurisdiction. From this fundamental principle, federal courts have reasoned that they should be strictly limited to those cases in which original jurisdiction has been conferred upon them and should not be allowed to denigrate the requirements of the removal statutes to enhance their jurisdiction. Finally and most importantly, a court without jurisdiction in a lawsuit is incapable of rendering a valid judgment. Therefore, in order to avoid reversal for lack of jurisdiction and, hence, to avoid the entry of valueless judgments, federal courts have reasoned that the removal statutes should be applied strictly.
Bellone v. Roxbury Homes, Inc., 748 F. Supp. 434, 436 (W.D.Va. 1990) (citations omitted).
Alaska Airlines' interpretation of Parrino results in a rule being adopted which is squarely at odds with these principles. A fairer reading of Parrino suggests that its holding is restricted to the ability of the Court of Appeals, on appeal, to consider procedural defects cured. The Parrino court took pains to clarify its holding and specifically instructed that it was not authorizing district courts to "ignore the procedural requirements for removal." Instead, the Parrino court stressed that it understood relevant precedent "merely to permit the Court of Appeals to treat as cured a procedural defect in the removal process corrected before entry of judgment." Thus construed, Parrino is consistent with existing precedent and the removal statute. An alternate reading of Parrino suggests that the court simply held that the district court did not abuse its discretion in denying a motion to remand. This holding, however, does not compel the opposite conclusion; that is, Parrino does not hold that this court must deny Toshavik's motion to remand. In either event, a notice of removal that is not joined by all defendants is defective, and may not be cured after the thirty-day statutory period has expired.
Parrino, 146 F.3d at 703 n. 1.
Id. (emphasis added).
This conclusion is supported by ample precedent. In Bellone v. Roxbury Homes, Inc., a group of homeowners filed suit against a builder and a corporation. The corporation removed to federal court. The builder did not join the notice of removal. The homeowners sought remand. In opposing the motion, the corporation submitted an affidavit from the builder in which he declared his intent to join the notice of removal. The court held that failure of a defendant to join a notice of removal was not a mere technical defect, and that such failure could not be cured by joining the notice of removal more than thirty days after service of the complaint.
748 F. Supp. 434 (W.D.Va. 1990).
In Mayers v. Connell, a plaintiff injured in a car accident filed suit against the other motorist and his insurer. The insurer removed to federal court. The motorist co-defendant did not join the notice of removal. Plaintiffs sought remand. The insurer attempted to amend its notice of removal to add the co-defendant. The court held that the notice of removal could not be amended to add a co-defendant after the thirty-day period had run.
651 F. Supp. 273 (M.D.La. 1986).
In Mason v. International Business Machines, Inc., plaintiffs filed suit alleging breach of employment contracts. IBM removed to federal court. IBM's co-defendant, RTKL Associates, Inc., did not join the notice of removal. However, RTKL filed an answer approximately a week after the thirty-day period expired in which it expressed its desire to join IBM's notice of removal. Plaintiffs sought remand. The court granted plaintiffs' motion. The court held that the notice of removal was defective because RTKL had not joined the notice. The court further held that amendment to permit RTKL to join the notice of removal after the thirty-day period had run was not permissible because failure to join the notice was not a mere technical flaw. This result was reached even though RTKL was only six days late in expressing its intent to join IBM's notice of removal.
543 F. Supp. 444 (M.D.N.C. 1982).
Id.
These authorities are typical of the ordinary result and represent the majority rule in application. Courts do not permit co-defendants to join notices of removal after the statutory thirty-day period has expired.
See, e.g., Toyota of Florence, Inc. v. Lynch, 713 F. Supp. 898, 905 (D.S.C. 1989) (removal not appropriate where all co-defendants did not join notice of removal); Cohen v. Hoard, 696 F. Supp. 564, 566-67 (D. Kansas 1988) (failure of co-defendant to join notice of removal before thirty-day period expired rendered removal impermissible and remand ordered); Courtney v. Benedetto, 627 F. Supp. 523, 525-27 (M.D.La. 1986) (holding notice of removal could not be amended to add co-defendant after thirty day period had run); Romashko v. AVCO Corp., 553 F. Supp. 391, 392 (N.D.Ill. 1983) (remand ordered where removing defendant did not explain absence of co-defendants in removal petition).
Here, Alaska Airlines filed a notice of removal. Edenshaw did not join the notice. Alaska Airlines' notice of removal did not address Edenshaw's failure to join the notice. Neither Alaska Airlines nor Edenshaw contends that Edenshaw was not served with the summons and complaint on August 26, 1999. Edenshaw's failure to join the notice of removal is not a mere technical error which may be cured by subsequent amendment. The notice was procedurally defective.
V. CONCLUSION
For the foregoing reasons, Alaska Airlines motion for reconsideration is DENIED. This case is ordered REMANDED to the Superior Court for the State of Alaska, Second Judicial District at Kotzebue, consistent with this order and the court's prior order at docket 12.