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Brandenburg v. Burns

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

November 4, 2019

CATHY BRANDENBURG as Natural Mother of Christian Brooke Joiner and guardian of William Rhys Gulnick, Plaintiff,



         This 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 this case.


         Plaintiff 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.)

         Despite 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.)

         Plaintiff 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).


         Actions 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).

         This 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. 1999).


         Plaintiff 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.

         I. The Unanimity Requirement

         As 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.”).[1] 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).

         A. There is No. “Mental Capacity” Exception to the ...

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