E-Alert Case Updates
Defendantís Removal Was Untimely Despite That Co-Defendants Refused to Consent to Removal Until After Deadline for Removal
Rita Pittman v. Quest Diagnostics, et al.
In a recent decision, the United States District Court for the District of Maryland held that a defendant’s removal of a case was untimely despite that its co-defendants had refused to consent to removal until more than thirty (30) days after the defendant was served with the lawsuit.
Plaintiff, Rita Pittman is an African American woman who was employed by Quest Diagnostics, a Delaware corporation with its principal place of business in New Jersey. After a co-worker made alleged racially discriminatory statements to her, Plaintiff complained to her supervisor and was transferred to a different office. At the new location, however, she was given fewer hours and thus effectively received a pay cut. As a result, on June 29, 2015, Plaintiff filed a complaint in the Circuit Court for Baltimore City alleging that she had been discriminated against on the basis of race, and naming Quest and two (2) Quest employees as defendants. Both Quest employees were domiciled in Maryland, and thus there was no diversity jurisdiction in the federal courts at that time.
The Quest employees were served with Plaintiff’s Complaint on July 13, 2015, and Quest itself was served on August 13, 2015. Notably, on August 12, 2015, counsel for Quest contacted counsel for the two (2) employees and requested consent to remove the case to federal court on the basis of federal question jurisdiction. Counsel for the two (2) employees refused to consent to removal. All defendants then moved to dismiss or transfer the case to the Circuit Court for Baltimore County. On September 16, 2015, the Circuit Court for Baltimore City held a hearing on the defendants’ motions. On that date, Plaintiff agreed to dismiss voluntarily the two (2) Quest employees with prejudice. Subsequently, on October 9, 2015, Quest removed the case to the United States District Court for the District of Maryland. On November 9, 2015, Plaintiff filed a motion to remand, arguing that Quest’s removal was untimely. Quest opposed the motion.
Judge Ellen Lipton Hollander, writing for the Court, granted Plaintiff’s motion to remand. The Court began by noting that, when the basis for federal court jurisdiction is federal question jurisdiction pursuant to 28 U.S.C. § 1331(a), all defendants must consent to federal jurisdiction. Under the “Last-Served Defendant Rule,” “if defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal” despite not previously timely consenting to removal. Moreover, under 28 U.S.C. § 1446(b)(3), if the case as set forth in the initial pleading is not removable, a notice of removal is not due until 30 days after the defendant receives notice of “an amended pleading, motion, order or other paper from which” the defendant can determine that the case “is or has become removable.”
The Court then addressed the somewhat unique facts of this case. As noted, at the outset of the case, the lack of diversity of the parties prevented the federal courts from having diversity jurisdiction. At that time, however, the case was still removable based on federal question jurisdiction, although consent of all defendants was needed. Despite that Quest sought the consent of its original co-defendants, they did not grant such consent. As a result, Quest argued that it did not become apparent that the case was removable until its co-defendants were voluntarily dismissed on September 16, 2015. In light of that date, Quest argued that its October 9, 2015 removal was timely.
The Court rejected Quest’s argument. Although a dismissal of non-diverse parties could constitute the first occurrence sufficient to give a defendant notice that a case has become removable, the relevant question for the Court was whether the case as set forth in the initial pleading was removable. In this case, the Court was persuaded that Plaintiff’s Complaint set forth a case that was properly removable on the grounds of federal question jurisdiction. Because the Court’s focus was only on the initial pleading, it held that Quest’s co-defendants’ refusal to consent to removal did not impact the Court’s analysis. The Court therefore concluded that, because the initial pleading initiated a case that possibly could have been removed, Quest had notice that the case was removable when it was filed. Because Quest removed the case more than thirty (30) days after it was served, its removal was untimely.
The Court further noted that the subsequent availability of diversity jurisdiction did not affect its analysis. The Court emphasized that it was required to construe removal statutes strictly and resolve any doubts in favor of state court jurisdiction. In this case, as the Court explained, the initial pleading set forth a federal question. Consequently, the case was removable when it was filed, and the later occurrence of an event offering a different grounds for removal did not give Quest additional time to remove the case. In other words, if any grounds for removal is apparent in the initial pleading, a subsequent occurrence that confers jurisdiction for a different reason is not relevant to the Court’s determination of the timeliness of the removal. As a result, the Court granted Plaintiff’s motion to remand.
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