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Higgins v. City of Savannah

United States District Court, S.D. Georgia, Savannah Division

February 8, 2018

JANET K. HIGGINS, Plaintiff,
THE CITY OF SAVANNAH, GEORGIA; et al., Defendants.


         Pro se plaintiff Janet Higgins fell and was injured while crossing River Street in Savannah, Georgia. Doc. 1-2 at 12, ¶ 12. She contends that the City of Savannah and various individual defendants are responsible for her injury. See doc. 1-2 at 10-33 (Complaint). She seeks to recover medical expenses and compensation for pain and suffering, for a total compensatory award of not less than $500, 000, as well as punitive damages and costs. Id. at 32. Defendants removed the action to this Court. See doc. 1 (Notice of Removal). Plaintiff now seeks remand to the state court. Doc. 5. Her request to supplement that motion (doc. 12) is GRANTED. Defendants oppose remand. Doc. 15. They also seek additional time to respond to plaintiff's amendment to her remand motion. Doc. 15. That request is GRANTED, subject to the additional requirement that the defendants address the issues discussed below (which are raised, but not fully developed in their response brief).

         Defendants removed this case from the Superior Court of Chatham County, Georgia. See doc. 1 (Notice of Removal). They assert that removal is proper pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1332. Id. at 3-4, ¶ 9. As with questions concerning the Court's subject matter jurisdiction generally, “there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are resolved in favor of remand.” Russel Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (cite omitted).

         Defendants assert that this Court has original jurisdiction based on the parties' diversity of citizenship. See doc. 1 at 3-4, ¶ 9. Assuming that defendants correctly assert the bases for diversity jurisdiction -- complete diversity of citizenship between the parties and an amount in controversy in excess of the statutory threshold, see 28 U.S.C. § 1332(a) --removal is still questionable. Section 1441 explicitly precludes removal based on diversity jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought, ” a provision commonly referred to as the “forum defendant rule.” 28 U.S.C. § 1441(b)(2); see Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011) (“When a case is removed based on diversity jurisdiction, as this case was, it must be remanded to state court if . . . [even] one of the defendants is a citizen of the state in which the suit is filed, [cit.].” (citation omitted)); see also, e.g., Charles Alan Wright, Arthur Miller, et al., 14B Fed. Prac. & Proc. Juris. § 3723 (4th ed. 2017) (“Section 1441(b) explicitly provides, and the cases uniformly hold, that diversity cases may be removed to federal court only if none of the parties in interest properly joined and served as a defendant is a citizen of the state in which the action was brought.”). Defendants' notice of removal explicitly alleges that they are all “citizens of Georgia” and that this action was brought in Georgia. Doc. 1 at 1, ¶1; 4, ¶ 9; see also doc. 14 at 1 (noting that defendants' Georgia citizenship is “a fact which is not in dispute.”).

         Defendants advance a rather subtle argument to support removal, even given the undisputed facts. They contend that no defendant has been properly served. Doc. 14 at 5-7. Consequently, they reason, § 1441(b)'s prohibition on removal by “any of the parties in interest properly joined and served as defendants” who are citizens of the state where the action was filed, does not apply. Id. at 5. They contend that the “plain meaning” of § 1441 requires this rather extraordinary result and that this action -- which they implicitly concede could not have been removed if even one defendant were properly served -- can be removed because of variously defective service. Id. at 5 (arguing that defendants were not served when removal was noticed); id. at 6-7 (arguing that service on all the defendants is defective for various reasons). The Court is not convinced that the interests underlying the forum defendant rule can be so easily displaced.

         Defendants cite to an unpublished case from the Middle District of Alabama in support of the proposition that a forum defendant (i.e., one who is “a citizen of the state in which such action is brought, ” 28 U.S.C. § 1441) who is not properly served may nevertheless remove a case, avoiding the forum defendant rule. Doc. 14 at 5 (citing Seong Ho Hwang v. Gladden, 2016 WL 9334726 (M.D. Ala. Dec. 12, 2016)). This Court, however, inclines more toward the well-reasoned and contrary opinion of the Northern District of Georgia. See generally Hawkins v. Cottrell, Inc., 785 F.Supp.2d 1361 (N.D.Ga. 2011) (concluding, after careful textual analysis, that “allowing an unserved forum defendant to remove a diversity action clearly defeats the purpose of the forum defendant rule because it enables a resident defendant, who would not be subject to presumptive local prejudice in the state courts, to obtain a federal forum. This totally eviscerates the forum defendant rule and leads to an absurd result, because it undermines the rationale for having a forum defendant rule at all.”).

         The Hawkins court concluded that removal is always improper unless at least one defendant is properly served. See Hawkins, 785 F.Supp.2d at 1369. There, as here, there was no dispute concerning the citizenship of the un-served defendant. See Id. at 1364. The Court thus explained the dilemma:

If [any] defendant had been served, then there would have been at least one party in interest that was joined and served, and the court would then proceed to ask whether ‘none' of the parties in interest were residents of the state where the suit was brought. At this point, the forum defendant rule would be applied to bar removal by defendant, because defendant is a resident of the state where the suit was brought.

Id. at 1369 n. 12. Avoiding the kind of Through-the-Looking-Glass procedural paradoxes that result from a non-party effecting removal and litigating, all the while maintaining that he is not properly served, is one of the principal virtues of the Hawkins approach. See n. 3 infra.

         Hawkins finds further support for its conclusion (that removal is improper unless at least one party is effectively served) in the Supreme Court's analysis of the timing provisions in 28 U.S.C. § 1446. See Hawkins, 785 F.Supp.2d at 1370 (discussing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)). The Supreme Court held that the thirty-day period within which notice of removal must be filed does not start until both service of the summons and receipt of the complaint upon the defendant.[1] Id. (citing Murphy Bros., 526 U.S. at 348, 356). Although Hawkins concedes that the Supreme Court has not determined that service was required before removal, the fact that the time for removal does not begin to run until after service has been effected suggests that service is at least a necessary (if not a sufficient) condition for removal. Id. The Hawkins court also points out that, if service were not a precondition to removal, § 1446's deadline is superfluous; “[i]f removal can be effected prior to service, it makes no sense for the removal deadline to begin to run after service of process.” Id.

         The Hawkins court finally explains that Georgia law provides additional support for the conclusion that there can be no removal without effective service on at least one defendant. Section 1441 contemplates removal “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). Whether an action is “pending” before a state court is a matter of state law. Hawkins, 785 F.Supp.2d at 1371. Georgia law historically recognizes a distinction between the “commencement of an action” and the existence of a “suit pending between the parties, ” and that distinction is preserved under the modern Civil Practice Act. Hawkins, 785 F.Supp.2d at 1371 (quoting McClendon v. Hernando Phosphate Co., 100 Ga. 219, 28 S.E.2d 152, 153 (1897) (historical distinction); Franek v. Ray, 239 Ga. 282, 236 S.E.2d 629, 632 (1977) (modern distinction)). That distinction implies that, under Georgia law, a filed action “‘is not a ‘pending' suit until after service of process is perfected.'” Hawkins, 785 F.Supp.2d at 1371-72 (quoting Steve A Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga.App. 780, 678 S.E.2d 186, 188 (2009) (citing Jenkins v. Crea, 289 Ga.App. 174, 656 S.E.2d 849, 850 (2008) (“An action is not a pending suit until service is perfected.”)).

         The Hawkins court, therefore, provides strong conceptual support for the conclusion that removal prior to any defendant being served is not proper. This conceptual support is in addition to the Hawkins court's persuasive discussion of the history of diversity jurisdiction and removal. See Hawkins, 785 F.Supp.2d at 1373-1378 (discussing “the fear that state courts would potentially exhibit local prejudice towards defendants who were citizens of a different state, ” as the underlying rationale of diversity jurisdiction and removal predicated upon it). The cumulative force of the Hawkins court's reasoning seems to overwhelm the strictly logical inference that underlies defendants' position here. See doc. 14 at 5 (“Giving the [forum defendant] rule its plain meaning, the converse of the rule should also be true.”); see also Oliver Wendell Holmes, Jr., The Common Law (1881) (“The life of the law has not been logic: it has been experience.”); Ralph Waldo Emerson, Self-Reliance, Emerson's Essays 45, 57 (Houghton, Mifflin & Co. 1980) (“A foolish consistency is the hobgoblin of little minds . . . .”).

         However, even if the Court were to accept the possibility of removal before effective service, it would then confront the City's argument that it has not, in fact, been properly served. The Court is all too familiar with the City's argument here. See, e.g., Willis v. Mayor and Alderman of the City of Savannah, 770 F.Supp.2d 1349, 1350 (S.D. Ga. 2011); Kicklighter v. City of Savannah, CV402-199, doc. 14 at 3 (S.D. Ga. Sept. 25 2002); Smith v. City of Savannah, CV404-134, doc. 5 at 1; doc. 12 (S.D. Ga. Nov. 30, 2004).[2] It contends that by naming only “The City of Savannah, Georgia, ” and not “The Mayor and Aldermen of the City of Savannah, ” service upon the City has not been perfected.[3] Doc. 14 at 6. As this Court has pointed out before, “[t]he City [of Savannah], which has never shown legal prejudice from not being called by its formal name was told [more than] a quarter century ago that its ‘wrong-name' dog won't hunt . . . .” Willis v. Mayor & Alderman of the City of Savannah, 770 F.Supp.2d 1349, 1350 (S.D. Ga. 2011). Georgia law continues to support that conclusion.[4] See, e.g, O.C.G.A. § 9-11-4(i) (“At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process is issued.”); Richard C. Ruskell, Ga. Prac. & Proc. § 8.9 (2017-2018 ed.) (“Where there is a misnomer of a defendant corporation in the complaint and summons, but the name set forth therein is such as to mislead nobody, such pleadings and summons are amendable to show the correct name.”). As the Georgia Court of appeals has explained (and as defense counsel would do well to remember):

“[a] suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. As a general rule the misnomer of a corporation in a notice, summons, notice by publication, garnishment action, writ of certiorari, or other step in a judicial proceeding is immaterial if it appears that it could not have been, or was not, misled . . . . Georgia cases . . . follow [ ] this rationale and do not hold that the existence of a mere misnomer authorizes one freely to ignore the fact that he has been served with legal process.”

Mathis v. BellSouth Telecomms., Inc., 301 Ga.App. 881, 884690 S.E.2d 210 (2010) (quoting Sam's Wholesale Club v. Riley, 241 Ga.App. 693, 696, 527 S.E.2d 293 (1999)) (alterations and emphasis in original); seealso AAA Restoration Co., Inc. v. Peek, 333 Ga.App. 152, 154 n. 1, 775 S.E.2d 627 (2015) (describing Mathis and other cases as “holding that a corporate misnomer in a complaint will not invalidate service of process where service was in fact made on the real party-defendant.”). There is no contention that the City was misled by plaintiff's nomenclature. See doc. 1-2 at 9 (memorandum to an Assistant City Attorney, ...

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