Opinion
No: 02-CV-74416
January 31, 2003
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND TO STATE COURT
I. Introduction
This matter is before the Court on Plaintiff's Motion to Remand to State Court. Defendants have not filed a response. Plaintiff originally filed its defamation Complaint in Oakland County Circuit Court, as Plaintiff's facility is physically located in Southfleld, Michigan and Defendants, located and residing in the state of Washington, allegedly transact business in Oakland County and the State of Michigan. Defendant filed a timely Notice of Removal on October 3, 2002. ( See Exhibit A of Plaintiff's Motion). Another Notice of Removal and Memorandum in Support was filed with the Court on November 8, 2002 ( See Exhibit B of Plaintiff's Motion). Plaintiff filed its Motion to Remand in a timely fashion based on the November 8, 2002 date. Accordingly, Plaintiff's Motion is properly before the Court.
II. Law Analysis
Plaintiff seeks to have this case remanded to Oakland County Circuit Court. Its argument is based upon the following premises: (1) removal was only sought on behalf of Defendant Ernest Walker; (2) the Defendant corporation did not join the removal petition; (3) the Defendant corporation is not properly before this Court because it is not represented by an attorney; and (4) the time period for the Defendant corporation to join in the removal petition has expired.
A. Procedural Defects in the Removal Process
Although procedural defects in removal petitions are not always a complete bar, it is clear that the petition should not be granted because of various substantive and procedural defects. Weisberg v. Midwest National Bank, 1985 WL 947, 1985 WL 947 (N.D.Ill.). "[A] procedural defect existing at the time of removal but cured prior to entry of judgment does not warrant reversal and remand of the matter to state court." Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir. 1998). Generally, all defendants must join in a removal petition under 28 U.S.C. § 1441. Metro Furniture Rental, Inc. v. Alessi, 770 F. Supp. 198, 200 (S.D.N.Y. 1991) ("The unanimous consent of all defendants in a multiparty case is normally a precondition to removal."); accord, Chicago, Rock Island Pacific RR Co. v. Martin, 178 U.S. 245 (1900). However, the failure of a defendant to join in the removal is a procedural defect that can be waived if the removal is not challenged within thirty days of the filing of the notice of removal. Metro Furniture Rental, Inc., 770 F. Supp. at 200, citing 28 U.S.C. § 1447(c)).
Plaintiff's first argument is that procedurally, Defendant's removal petition is defective because it fails to include all of the Defendants as joining in the request for removal. Upon reviewing Plaintiff's Notice of Removal and Memorandum in Support, it appears that Defendant, Ernest Walker, brought his request for removal on his own behalf, excluding the Defendant corporation. Therefore, under normal circumstances, the Court would find that Plaintiff's Motion should be granted based upon this procedural defect. However, two points persuade the Court to give Defendant Walker some latitude relative to his pro se pleading.
1. Pro Se Litigant
First, Defendant, Ernest Walker, is a pro se litigant. Because Defendant Walker is proceeding in pro per, the Court will interpret his papers liberally. See, e.g., Hughes v. Rowe, 499 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972), c.f., Town of Moreau v. New York State Dept. of Envtl. Conservation, 1997 WL 243258 (N.D.N.Y. 1991) (refusing to relax otherwise stringent removal requirements to find a waiver where plaintiff failed to raise the particular issue of defendant's untimely removal). Second, Defendant makes a reference to Defendant corporation within the text of his Memorandum in Support of his removal petition. It is unclear whether Defendant Walker meant to include Defendant corporation in his removal petition or if the Defendant corporation was merely referenced as support for the diversity jurisdiction argument posed by Defendant Walker. Despite Defendant Walker's intentions, the Court will consider the merits of Defendant's removal petition in analyzing Plaintiff's Motion to Remand. See, Coleman v. National Ass'n of Securities Dealers, Inc., 1999 WL 305100, (S.D.N.Y. 1999); Fisher v. Building Services 32-B-J Health Fund, 1997 WL 590843 (S.D.N.Y. 1997).
Even though the Court is inclined to afford Defendant Walker some latitude and allow him to cure the defect by amending the removal petition pursuant to 28 U.S.C. § 1653 and officially include Defendant corporation in the removal petition, the Court must nevertheless remand this action to Oakland County Circuit Court. Martin v. Farmers First Bank, 1992 WL 365518 (E.D.Pa., 1992).
B. Legal Representation of a Corporate Entity in Court
A corporation cannot appear before this Court without an attorney. Ginger v. Cohn, 426 F.2d 1385, 1386 (6th Cir. 1970); U.S. v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir. 1969); 28 U.S.C. § 1654. Furthermore, a corporation may not appear through an officer of the corporation who is not an attorney; this is so, despite the fact that the officer may be a principal shareholder of that corporation. Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385-86 (11th Cir. 1985); Doherty v. American Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984). Only a licensed attorney may practice law; and a corporation may not appear in court through its officers who are not attorneys. Id.
Defendant Walker has not represented to the Court that he is a practicing attorney in good standing in the state of Michigan; and therefore, the Court finds that he is incapable of representing the corporate Defendant's interests by adding it to the removal petition. Since the corporate entity needs to be a part of the removal process and Plaintiff has timely objected to the failure of its inclusion, the Court finds that this procedural defect is one that cannot be amended without an attorney of law representing the corporate entity's interests.
Even if the corporate entity were to obtain legal and acceptable representation, the time period in which to remove this matter has long since passed (i.e., thirty days from service of removal petition). Since Plaintiff's filing of its Motion to Remand on December 2, 2002, Defendants have made no effort to rectify these procedural defects and have failed to respond to Plaintiff's Motion. On these grounds, the Court finds that remand is warranted.
C. Merits of Defendant's Removal Petition
Upon reviewing Defendant's removal petition, the basis for their position is diversity jurisdiction and federal subject matter jurisdiction.
1. Diversity Jurisdiction
In order to show diversity jurisdiction, there must be complete diversity amongst the parties and it must be facially apparent, from Plaintiff's Complaint as it existed at the time of removal or proven by a preponderance of the evidence, that the amount in controversy exceeds seventy-five thousand dollars. ABS Ins., Ltd. v. National Union Fire Ins. Co., 51 F. Supp.2d 762, 764 (W.D.Tex., 1999). "The removing party `must show that it appears to a legal certainty that the amount in controversy' exceeds $75,000.00." Corlew v. Denny's Restaurant, Inc., 983 F. Supp. 878, 1997 WL 731734 (E.D.Mo. 1997), citing Visintine v. Saab Auto., A.B., 891 F. Supp. 496, 497 (E.D.Mo. 1995)). The Defendant, as the removing party, has the burden of proving the jurisdictional amount. Visintine v. Saab Auto., 891 F. Supp. at 497 (E.D.Mo. 1995).
In this case, Defendant Walker makes no reference to the amount in controversy in his removal petition. Since Plaintiff's Complaint states that the amount in controversy exceeds $25,000.00 and Defendant Walker's pleadings do not include any facts or allegations to support a damages amount in excess of $75,000.00, the Court cannot find that diversity jurisdiction exists, despite the fact that Defendant Walker and the corporate Defendant both reside and are located, respectively, in the state of Washington. Defendant's conclusory statements in its removal petition are insufficient. See, National Nail Corp. v. Moore, 139 F. Supp.2d 848, 850-51 (W.D.Mich., 2001).
Therefore, the Court finds no diversity in this case.
2. Federal Subject Matter Jurisdiction
The Court likewise finds no federal subject matter jurisdiction in this case. Plaintiff's Complaint strictly alleges a state law defamation claim with no reference to any federal statutory law or constitutional claims. Defendant Walker references the fact that his defense may be based upon constitutional grounds. However, that does not constitute a basis for federal jurisdiction in this matter.
III. Conclusion
Plaintiff's Motion to Remand to State Court is GRANTED, and the Clerk is directed to prepare the necessary paperwork to remand this matter th the Sixth Judicial Circuit, Oakland County Circuit Court, forthwith
IT IS HEREBY ORDERED that Plaintiff's Motion to Remand to State Court [Docket No: 6-1] is GRANTED, and the Clerk is directed to prepare the necessary paperwork to remand this matter th the Sixth Judicial Circuit, Oakland County Circuit Court, forthwith.