Ballard v. District of Columbia
813 F. Supp. 2d 34
D.D.C.2012Background
- Plaintiffs, the family of decedent Yiana-Michelle Ballard, moved to remand a wrongful death action from this federal court back to the Superior Court of DC.
- Original defendants: District of Columbia, Detective Charles Hilliard, and DC Child and Family Services Agency employees Kenneth Frazier and William Johnson; all represented by DC Attorney General.
- Complaint filed in Superior Court on Oct. 7, 2010; DC served Oct. 8, Johnson Oct. 21, Frazier Oct. 27, Hilliard Nov. 3, 2010.
- DC removed on Nov. 5, 2010; amended removal filed Dec. 3, 2010 to reflect Hilliard’s consent and assert Frazier’s and Johnson’s consent.
- Plaintiffs argued removal was untimely and sought fees; Defendants argued Johnson and Frazier timely joined removal via an extension motion and that Hilliard timely removed.
- Court held that under any of the governing consent-rules, removal was procedurally defective and remand was warranted; equities favored remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand is proper under any rule of consent timing | Ballard contends removal untimely and non-unanimous | DC argues some consents timely; last-served/first-served/intermediate rules all raised | Remand granted under all applicable rules |
| Whether the last-served rule applies to require timely consent by all defendants | JOHNSON and FRAZIER timely joined removal within 30 days of service | They unambiguously consented via Hilliard amendment and extension filing | Last-served rule not satisfied; still defect; remand upheld |
| Whether the intermediate rule applies | Later-served defendants must join within 30 days of service if first served defendant filed timely removal | HC/Johnson/Frazier timing attempts should count under intermediate rule | Intermediate rule not satisfied; remand upheld |
| Whether the remand order is reviewable or subject to fee-shifting under § 1447 | Remand order reviewable for reconsideration of timeliness/fees | Remand under § 1447(c) bars review under § 1447(d); no fees due | Remand affirmed; no attorney’s fees awarded |
Key Cases Cited
- Ficken v. Golden, 696 F. Supp. 2d 21 (D.D.C. 2010) (unanimity required for removal in multi-defendant cases)
- Ok Yeon Cho v. D.C., 547 F. Supp. 2d 28 (D.D.C. 2008) (unanimity rule for removal in multi-defendant actions)
- Barbour v. Int'l Union, 640 F.3d 599 (4th Cir. 2011) (describes last-served/intermediate rules balance)
- Williams v. Int'l Gun-A-Rama, 416 Fed. Appx. 97 (2d Cir. 2011) (discusses timing rules for removal in multi-defendant cases)
- Galamison, 342 F.2d 255 (2d Cir. 1965) (limits § 1443 removal to specific civil-rights statutes)
- Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007) (statutory bar interplay between § 1447(c) and § 1447(d))