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Andrews v. Board of Education of Prince Georges County

United States District Court, D. Maryland

September 9, 2019

AYANA ANDREWS, Parent & Next Friend of S.H., a minor, Plaintiff,
v.
BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, et al., Defendants. MONICA HARLEY, Parent & Next Friend of D.W., a minor, Plaintiff,
v.
BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, et al., Defendants. JANE DOE #12, Individually and as Parent & Next Friend of JOHN DOE #9, a minor, Plaintiffs,
v.
PRINCE GEORGE'S COUNTY BOARD OF EDUCATION, et al., Defendants. JANE DOE #13, Individually and as Parent & Next Friend of JOHN DOE #10, a minor, Plaintiffs,
v.
PRINCE GEORGE'S COUNTY BOARD OF EDUCATION, et al., Defendants. JOHN DOE #7 AND JANE DOE #11, Individually and as Parents & Next Friends of JOHN DOE #8, a minor, Plaintiffs,
v.
PRINCE GEORGE'S COUNTY BOARD OF EDUCATION, et al., Defendants.

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE

         This Memorandum Opinion applies to five separate civil cases, all of which concern Defendant Deonte Carraway's alleged sexual acts with minor children while employed at Sylvania Woods Elementary School. In separate criminal proceedings in federal and state court, Carraway pled guilty to crimes including child sex abuse, and is now incarcerated in federal prison.

         These five civil suits are brought by the parents and next friends of minor children Carraway is said to have harmed and by the children themselves. Notably, there are at least nine similar cases involving Carraway in the Circuit Court for Prince George's County that have been consolidated for the purpose of the state proceedings. The cases presently before this Court were originally before the Circuit Court for Prince George's County, but were removed here by Defendant Prince George's County Board of Education (“Board of Education”).[1] Plaintiffs in each of the five cases have filed Motions to Remand to state court and the Board of Education has responded. The motions are fully briefed, and no hearing is necessary. See Loc. R. 105.6.

         For the following reasons, the Motions to Remand are GRANTED as to Civ. No. PJM 19-1307, Civ. No. PJM 19-1314, and Civ. No. PJM 19-1368 and DENIED as to Civ. No. PJM 19-706 and Civ. No. PJM 19-709.

         a. Removal and Remand

         Generally, a defendant may remove to federal court any civil action brought in state court if the federal court would have had original jurisdiction. 28 U.S.C. § 1441(a). Here federal jurisdiction is properly grounded in federal question jurisdiction, 28 U.S.C. § 1331, since each of the cases includes at least one claim under federal law.[2] Accordingly, none of the Parties dispute that this Court has proper subject matter jurisdiction.

         The Plaintiffs in all five cases do, however, claim that their respective cases should be remanded because of a procedural defect in the removal process. More specifically, they claim that the Board of Education failed to obtain Carraway's consent for the removal and therefore failed to comply with the requirement that “[a]ll defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A); see also Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255, 259 (4th Cir. 2013) (“The Supreme Court has construed these statutes to require all defendants in a case to join in or consent to removal, creating the so-called ‘rule of unanimity.'”). Indeed, the Parties agree that Carraway did not consent to the removal.[3]

         Instead, the Board of Education argues that Carraway need not consent to the removal because he is a “nominal party” and is therefore excepted from the general requirement that all defendants must join in the removal. The Court disagrees.

         Determining whether a party is nominal is a straightforward inquiry based upon the particular facts of the case and focused on whether the non-consenting party, e.g. Carraway, has an interest in the outcome of the case. Hartford Fire, 736 F.3d at 260-61. Moreover, the Fourth Circuit has advised that “the word nominal should be taken to mean what a good dictionary says it should mean: ‘trifling' or ‘existing in name only.'” Id., 260 (citing Black's Law Dictionary 1148 (9th ed. 2009)). Clearly Carraway is not a nominal party. He is allegedly the primary wrongdoer, a central figure in each of the cases, and potentially subject to substantial money judgments. Accordingly, the removal in each case was procedurally defective.

         b. Cases Civ. No. PJM 19-1307, Civ. No. PJM 19-1314, and Civ. No. PJM 19-1368

         For this reason, [4] and since the Motions to Remand were timely filed in Civ. No. PJM 19-1307, Civ. No. PJM 19-1314, and Civ. No. PJM 19-1368, [5] the Motions to Remand in these cases are GRANTED.

         c. Cases Civ. No. PJM 19-706 and Civ. No. PJM 19-709

         On the other hand, the Motions to Remand in Civ. No. PJM 19-706 and Civ. No. PJM 19-709 were not timely filed.

         Title 28 U.S.C. § 1447(c), which governs the procedure after removal, states: “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).” The “[f]ailure of all defendants to join in the removal petition does not implicate the court's subject matter jurisdiction. Rather, it is merely an error in the removal process. As a result, a plaintiff who fails to make a timely objection waives the objection.” Payne ex rel. Estate of Calzada v. Brake, 4 ...


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