Watson v. Forest City Commercial Management, Inc.: A Look at the Federal Removal Statute


Although trial is the stage of litigation that many consider to be the key moment for legal argument, many critical battles over the admissibility of evidence, venue and the applicability of certain laws take place long before trial, assuming the case even gets that far. The initiation of litigation often leads to immediate procedural bickering over whether the case has been brought before the proper court or should be dismissed or otherwise transferred to a different venue. Among these procedural arguments raised at the onset of litigation is whether an action that has been brought in state court should be removed to federal court. Although plaintiffs typically have the right to bring a case in the setting of their choice, as long as that court has subject matter jurisdiction over the issues raised and personal jurisdiction over the parties involved, defendants can, under certain circumstances, move to have a case that has been brought in a state court removed to federal court. Given the differences in rules that can apply in these venues, determining whether removal is justified can have an impact on the outcome of a case. Arguments common in removal proceedings are highlighted in Watson v. Forest City Commercial Management, Inc., a recent decision from the United States District Court for the Northern District of Georgia.

The Watson case arose from an incident at The Mall at Stonecrest in DeKalb County, Georgia. During a trip to the mall, the plaintiff in this action alleges that she was attacked by several third parties. Although third parties carried out the attack, the plaintiff brought a legal action against Stonecrest Mall and North American Midway Entertainment-All-Star Amusement, Inc. (“Midway”), asserting claims for negligence and premises liability. Although proving negligence when there is an intervening third-party criminal act is already a demanding undertaking, the defendants created further trouble for the plaintiff by moving, only 20 days after the initiation of the action, to have the case removed to federal court from the State Court of DeKalb County, Georgia, where it had originally been filed. In response to the defendants’ Notice of Removal, the plaintiff argued that removal was unwarranted because both defendants did not properly join the removal action, one defendant made an untimely answer, and both defendant corporations are “citizens” of Georgia, which would render the federal court without jurisdiction over the case. Thus, the federal court, which was now exercising control over the case, needed to determine whether removal was warranted.

The court quickly disposed of the plaintiff’s two initial arguments. First, an action may only be removed from state court to federal court when all the defendants consent to the removal of the action. U.S.C. § 1446(b)(2)(A) (“all defendants who have been properly joined and served must join in or consent to the removal of the action.”). Under 11th Circuit precedent, a defendant effectuates its consent to the removal by either “signing the notice of removal or by explicitly stating for itself its consent on the record.” Nathe v. Pottenberg, 931 F.Supp. 822, 825 (M.D. Fla. 1995). Although the plaintiff argued that the failure of one of the defendants to sign the Certificate of Service constituted a lack of consent to the removal action, the court found this detail insignificant because both defendants did sign the Notice of Removal. Next, the court addressed whether the failure of one of the defendants to answer the complaint within seven days after the Notice of Removal justified remanding the case back to state court. Although Fed. R. Civ. P. 81(c)(2)(C) requires that a defendant answer the complaint of an action subject to a Notice of Removal within seven days of the Notice of Removal, the court held that failure to adhere to this rule does not constitute a defect in the removal process. See, e.g., Sicinski v. Reliance Funding Corp., 461 F. Supp. 649, 652 (S.D.N.Y. 1978) (holding that the filing of an untimely answer does not serve as a basis for remand because the timeliness of a responsive pleading under Rule 81(c) is not a statutory removal requirement). Instead, default would likely be the more appropriate remedy for failing to conform to the provisions of Fed. R. Civ. P. 81(c)(2). See Strukmyer, LLC v. Infinite Fin. Solutions, Inc., No. 3:13-cv-3798-L, 2013 WL 6388563, at *3 (N.D. Tex. Dec. 5, 2013) (noting that “a defendant who fails to timely file an answer … [within the time provided by Rule 81(c)] risks default”).

However, the court was more responsive to the plaintiff’s final argument. Although the court did not think the plaintiff’s unsubstantiated assertion that the defendants “have active and compliant corporation filings with the Secretary of State for the State of Georgia allowing them to transact business within this State” was sufficient to find that the defendant corporations were citizens of Georgia, the court did note that it had an independent obligation to assure it has subject-matter jurisdiction. In this case, the citizenship of Midway remained uncertain. First, a corporation is considered a citizen of “every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” 28 U.S.C. § 1332(c). Since Midway is a limited liability corporation, it is considered to be a citizen of any state of which one of its members is a citizen. See RES-GA Creekside Manor, LLC v. Star Home Builders, Inc., No. 2:10-CV-207-RWS, 2011 WL 6019904, at *3 (N.D. Ga. Dec. 2, 2011).

For removal to be proper, a federal court must have subject-matter jurisdiction, which in cases involving diversity jurisdiction requires that there be complete diversity, meaning none of the defendants shares citizenship with any of the plaintiffs. Ingram v. CSX Transp., Inc., 146 F.3d 858, 861-62 (11th Cir. 1998). In addition, the federal removal statute, 28 U.S.C. § 1441, prohibits removal of an action when any of the defendants is a citizen of the state where the action had been filed, even if there exists complete diversity. 28 U.S.C. § 1441(b)(2). Since the plaintiff in this action is a citizen of Georgia, a finding that Midway is a citizen of Georgia would both destroy diversity jurisdiction and render removal improper pursuant to § 1441(b)(2). The burden of proving the grounds for removal is on the party seeking removal, and while the Notice of Removal showed that the Stonecrest Mall is a citizen of Georgia, there is no evidence in the pleadings or record establishing the citizenship of Midway. In situations when there is uncertainty about the basis of removal, remand is favored. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). However, the court opted to still deny remand in order to give the defendants time to submit evidence substantiating Midway’s citizenship.

As this case clearly demonstrates, even ostensibly straightforward premises liability litigation against a local mall can lead to considerable legal back and forth. Accordingly, it is wise for anyone seeking redress for his or her injuries to seek guidance from competent counsel. The Atltanta premises liability attorneys at Christopher Simon Attorney at Law have experience in representation before both Georgia state and federal courts and are ready to offer the legal advice you may need. If you have recently been injured in a possible act of negligence and would like more information about your options for recovery, feel free to contact us for a free case evaluation.

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