United States District Court, S.D. Georgia, Statesboro Division
CATHY BRANDENBURG as Natural Mother of Christian Brooke Joiner and guardian of William Rhys Gulnick, Plaintiff,
TYRONE BURNS, JR.; CITY OF VIDALIA; TYRONE BURNS, SR.; AND CENTERSTONE OF FLORIDA, INC., Defendants.
STAN BAKER, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion to
Remand, (doc. 15). Plaintiff Cathy Brandenburg filed this
civil action in state court as guardian of Christian Brooke
Joiner's son seeking damages for the wrongful death of
Ms. Joiner against Defendants Tyrone Burns, Jr. (hereinafter
“Burns”), the City of Vidalia, Tyrone Burns, Sr.
(hereinafter “Burns, Sr.”), and Centerstone of
Florida, Inc. (hereinafter “Centerstone”). (Doc.
1-1, pp. 3-7.) She also brought claims against these
Defendants for Ms. Joiner's pain and suffering and
medical bills as the administratix of Ms. Joiner's
estate. (Id.) After being served with the lawsuit,
Centerstone removed the case to this Court. (Doc. 1.) In
response, Plaintiff filed the present motion, seeking to have
the case remanded back to the state court. (Doc. 15.)
Defendant filed a Response to this motion, (doc. 17), and
Plaintiff subsequently filed a Reply, (doc. 20). For the
reasons explained more fully below, the Court
GRANTS Plaintiff's Motion to Remand,
(doc. 15), DENIES Centerstone's request
for jurisdictional discovery, (doc. 17, pp.
15-16), and REMANDS the case to the Superior
Court of Toombs County, Georgia. The Court
DIRECTS the Clerk of Court to enter the
appropriate judgment of remand and to CLOSE
is a resident and citizen of Toombs County, Georgia. (Doc.
15, p. 3.) She is the mother of the deceased Christian Brooke
Joiner and the guardian of Ms. Joiner's child, William
Rhys Gulnick. (Id. at p. 1.) Ms. Joiner was murdered
by Defendant Burns on November 16, 2018. (Id.; doc.
15-2, pp. 14-16, 19-20.) Several months earlier, in April of
2018, Burns had been involved in a criminal proceeding before
the Circuit Court of the Twelfth Judicial Circuit in Manatee
County, Florida. (Doc. 1-1, pp. 8, 10.) The Circuit Court
determined that the criminal action against Burns could not
continue because he was “incompetent … due to
mental illness and intellectual disability.”
(Id. at p. 8.) In accordance with Florida law, the
Twelfth Judicial Circuit released him on several conditions.
(Id. at pp. 8-9.) First, Burns had to enroll in
“mental health treatment and competency training”
administered by Defendant Centerstone. (Id.) He also
had to live with his father, Defendant Tyrone Burns, Sr., at
his home in Lakeland, Florida. (Id.) In order to
live anywhere other than his father's house, Burns was
required to obtain the approval of his case manager and to
notify the court. (Id.)
these restrictions, at some point in or prior to August 2018,
Burns began living with Teresa Byas in Vidalia, Georgia,
without obtaining his case manager's approval. (Doc. 17,
p. 2-3; doc 15-1, p. 2.) Over the next several months, while
in Vidalia, Burns had several encounters with the Vidalia
Police Department. (Doc. 15-1, pp. 2-3.) On September 28,
2018, he was arrested for criminal trespass, and on October
30, the police responded to a domestic violence report
involving him and Ms. Byas. (Id.) Shortly
thereafter, on November 16, Burns killed Ms. Joiner. (Doc 15,
p. 1; doc. 15-2, pp. 19-20.) He was arrested the next day.
(Doc. 15-2, p. 15.) During this time, Burns' case manager
did not know that Burns was no longer residing with his
father. (Doc. 17, pp. 2-3). She did not learn that Burns was
in Georgia until March 2019, while he was awaiting trial for
Ms. Joiner's murder. (Id.) On July 24, 2019,
Burns pled guilty to the felony murder and aggravated assault
of Ms. Joiner. (Doc. 15-2, pp. 19-22.) He is currently
serving a life sentence in Georgia Diagnostic and
Classification Prison. (Doc. 15-3, pp. 2-3.)
filed this wrongful death action in the Superior Court of
Toombs County on June 3, 2019. (Doc. 1-1, p. 3.) She asserts
that Burns is liable because he “shot and killed”
Ms. Joiner. (Id. at p. 5.) She claims that Burns,
Sr. and Centerstone are liable for failing to appropriately
monitor Burns, and that the City of Vidalia is liable for its
Police Department's failure to properly investigate him.
(Id. at pp. 5-6.) All the Defendants were served
with summons and process. (Doc. 1-5, pp. 2, 28-31). On July
18, 2019, before filing an answer, Centerstone removed the
case, arguing that “[t]his Court possesses diversity
jurisdiction over this action under 28 U.S.C. §
1332(a).” (Doc. 1, p. 1-2.) Burns did not provide his
consent to the removal of the case to this Court. (Doc. 1, p.
4). In fact, in its Notice of Removal, Centerstone indirectly
acknowledged that Burns had not consented, emphasizing that
Burns “has been declared mentally incompetent pursuant
to the claims and Exhibits of Plaintiff's
Complaint.” (Id.) Plaintiff filed a Motion to
Remand the action back to state court on August 19, 2019,
(doc. 15), and Centerstone filed a Response, (doc. 17).
Plaintiff thereafter filed a Reply, (doc. 20).
initially filed in a state court may be removed to federal
court in two circumstances: (1) where the claim presents a
federal question or (2) where diversity jurisdiction exists.
28 U.S.C. § 1441(a-b); see also Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987) (“Only
state-court actions that originally could have been filed in
federal court may be removed to federal court by the
defendant.”). Either one of these grounds will provide
a district court with original federal subject matter
jurisdiction over the case. 28 U.S.C. §§ 1331-32.
In addition, for removal to be proper, “all defendants
who have been properly joined and served must join in or
consent to the removal of the action.” Id.
§ 1446(b)(2)(A). This must be done within the thirty-day
time limit mandated by 28 U.S.C. § 1446(b). Schmidt
v. Nat'l Org. for Women, 562 F.Supp. 210, 212 (N. D.
Fla. 1983). This removal condition is often referred to as
the “unanimity requirement.” See Russell
Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1044
(11th Cir. 2001), abrogated on other grounds as
recognized in Overlook Gardens Props., LLC v. ORIX USA,
L.P., 927 F.3d 1194 (11th Cir. 2019).
Court is not permitted to simply ignore a procedural defect
when that defect has been raised by the plaintiff in a timely
filed motion to remand, even if the procedural defect is
viewed as “trivial or inadvertent.” Beard
v. Lehman Bros. Holdings, Inc., 458 F.Supp.2d 1314, 1318
(M.D. Ala. 2006). Thus, the Court must remand a case if the
technical requirements for removal have not been satisfied.
Id. Removing defendants carry the burden of
demonstrating that they removed the case properly, and
“this burden is a heavy one.” Lampkin v.
Media Gen., Inc., 302 F.Supp.2d 1293, 1294 (M.D. Ala.
2004). Because removal jurisdiction creates significant
federalism concerns, federal courts are directed to construe
removal statutes strictly with all doubts regarding
jurisdiction being resolved in favor of remand. Univ. of
S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir.
argues that the case should be remanded because this Court
does not have federal subject matter jurisdiction over the
action. (Doc. 15, p. 5.) First, Plaintiff contends that Burns
is a citizen of the State of Georgia, (id. at 4),
not Florida as Centerstone alleges, (doc. 1, p. 3), and that
removal of the case was thus barred by the forum defendant
rule. (Doc. 15, p. 5.) Additionally, Plaintiff claims remand
is required because Burns “did not consent to the
removal of the action to federal court, ” and thus the
unanimity requirement was not satisfied. (Id.) For
the following reasons, the Court concludes that the action
should be remanded to state court due to Burns' failure
to consent to removal. Having determined that remand is
necessary on this ground, the Court need not address
Plaintiff's other ground for remand.
The Unanimity Requirement
stated above, “[t]he unanimity requirement mandates
that in cases involving multiple defendants, all defendants
must consent to removal.” Russell Corp., 264
F.3d at 1044 (citations omitted). The defendants in a case
satisfy the unanimity rule when they all “join”
in the notice of removal. See Tri-Cities Newspapers, Inc.
v. Tri-Cities Printing Pressmen & Assistants' Local
349, 427 F.2d 325, 326-27 (5th Cir. 1970) (“The
law is clear that . . . removal procedure requires that all
defendants join in the removal
petition.”). The rule “does not require that
every defendant actually sign the same petition, ” but
consent “must be expressed to the court within the
thirty day period, whether by petition, written consent or
oral consent.” Clyde v. Nat'l Data Corp.,
609 F.Supp. 216, 218 (N.D.Ga. 1985).
There is No. “Mental Capacity” Exception to the