Opinion
Case No. 02-74096
February 28, 2003
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
Plaintiff Janice Harbin Joseph commenced this action in Wayne County Circuit Court, State of Michigan on August 26, 2002, asserting a variety of state and federal constitutional claims arising from the death of her brother, Ricardo Harbin, while he was in the custody of the Detroit Police Department on August 28, 2000. In her present complaint ("Harbin II"), Plaintiff names two police officers as Defendants. Previously, on March 27, 2002, Plaintiff filed a very similar complaint in state court, but named as Defendants the City of Detroit and two "John Does." This prior suit ("Harbin I") was timely removed to this Court on April 25, 2002 by the Defendant City. It appears that Plaintiff commenced the present suit, Harbin II, upon discovering the identities of the two "John Doe" Defendants.
Plaintiff filed a still-earlier state court suit that was removed to this Court on August 24, 2001. This initial suit also named the City of Detroit and two "John Does" as Defendants, and was dismissed without prejudice by stipulation of the parties on March 22, 2002.
Defendant Thornton removed Harbin II to this Court on October 15, 2002. In his notice of removal, Defendant stated that the summons and complaint were served upon him on September 13, 2002, and that he removed the case within thirty days of this service. (See Notice of Removal at ¶¶ 3, 10.) In an amended notice of removal filed on October 31, 2002, however, Defendants have acknowledged that Defendant Thornton actually was served a few days earlier, on September 9, 2002. (See Amendment to Notice of Removal at ¶ 2.) Based upon this updated information, Plaintiff filed the present motion to remand on November 13, 2002, arguing that the removal of this case was not accomplished within thirty days of service as required under 28 U.S.C. § 1446(b). In response, Defendants acknowledge their untimely removal, but contend that this case may remain in federal court as a companion to Plaintiff's previous, timely-removed suit against the City of Detroit, Harbin I.
This amended notice also states, contrary to the initial notice, that Defendant Cochran was served at some point in September of 2002. (See id. at ¶ 3.)
To this same end, the Defendant City of Detroit has filed a motion for joinder and consolidation in Harbin I, requesting that Plaintiff's claims against the individual officer Defendants in the present action be joined with her claims against the City in the prior suit.
Notwithstanding Defendants' appeals to judicial economy and their suggestions that Plaintiff has engaged in forum-shopping, the Court simply is not aware of any legal basis upon which to deny Plaintiff's motion for remand. To be sure, rather than commencing an entirely new suit, Plaintiff could (and probably should) have sought to amend her complaint in Harbin I to substitute Lieutenant Cochran and Officer Thornton for the two "John Doe" Defendants. Moreover, the Court is perfectly prepared to accept Defendants' suggestion that Plaintiff likely chose to file a new state court suit, rather than amending the complaint in her existing one, out of a strategic desire to pursue her claims against the individual officers in a more favorable forum. Finally, assuming that both of Plaintiff's cases were properly in federal court, the Court has no doubt that consolidation would be appropriate.
Yet, none of this overcomes the brute fact that the present action has not been properly brought before this Court in accordance with the dictates of the federal removal statute. Section 1446(b) expressly requires that a case be removed within thirty days after service of the complaint, and Defendants admittedly failed to do so. It follows that there is nothing to consolidate, because only one of Plaintiff's two cases, Harbin I, is properly in this Court. Defendants having failed to timely remove Harbin II to this Court, and Plaintiff having timely moved for remand on this ground see 28 U.S.C. § 1447(c), this Court is compelled to follow the command of the governing federal statutes and remand this case as untimely removed. The possible relationship of this case to another, timely removed case is wholly immaterial to the Court's inquiry, because this Court lacks the power to reach out and exercise jurisdiction over a case which is pending in a Michigan court and which was never properly removed from that court.
The Court recognizes Defendants' protest that this result will reward Plaintiff for her forum-shopping effort. Yet, Defendants could have defeated this strategy simply by meeting the 30-day deadline of § 1446(b). Likewise, the Court acknowledges Defendants' desire to avoid duplication of efforts and to preserve judicial resources, as well as their concern about the possibility of inconsistent results. As to this latter point, at least, it appears likely that a ruling in one case would have some issue-preclusive effect in the other. In any event, despite the salutary effects of a different outcome, this Court must follow the clear dictates of the federal removal statute.
For these reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff's November 13, 2002 Motion for Remand is GRANTED.