United States District Court, M.D. Tennessee, Nashville Division
JAMES E. BOSTIC, Plaintiff,
SHARA BIGGS, ET AL., Defendants.
ALISTAIR E. NEWBERN, United States Magistrate Judge
Honorable Aleta A. Trauger
District Court referred this 42 U.S.C. § 1983 action to
the undersigned Magistrate Judge under 28 U.S.C. §§
636(b)(1)(A) and (B) to dispose or recommend disposition of
any pretrial motions and to conduct further proceedings, if
necessary, under Rule 72(b) of the Federal Rules of Civil
Procedure, and the Local Rules of Court. (Doc. No. 65.)
before the Court are Defendant Metropolitan Government of
Nashville and Davidson County's (Metro Government) Motion
to Dismiss (Doc. No. 105) and Motion to Remand (Doc. No.
128). Plaintiff James Bostic has responded in opposition to
both motions. (Doc. Nos. 107, 139.) For the following
reasons, the undersigned recommends that the Motion to Remand
be GRANTED and the Motion to Dismiss be DENIED AS MOOT.
time Plaintiff James E. Bostic filed his Complaint,
was an inmate in the custody of the Davidson County
Sheriff's Office (DCSO). (Doc. No. 1.) The DCSO is a unit
of Metro Government that operates its jails. In his Complaint
and Amended Complaint, Bostic alleges that, while he was in
the DCSO's custody, Defendants denied him adequate
medical care, showers, recreational time, and mental health
and related services. (Doc. Nos. 1, 51.) He brings claims
under the Eighth Amendment and the Americans with
Disabilities Act of 1992. (Id.)
filed this action in the Circuit Court for Davidson County.
(Doc. No. 1.) Defendant Mental Health Cooperative (MHC)
removed the case to this Court, asserting federal question
jurisdiction under 28 U.S.C. § 1331. (Id.) When
MHC filed its Notice of Removal, no other defendant had yet
been served. (Id.)
District Court considered the adequacy of Bostic's
Complaint in its March 13, 2015 Order granting in part and
denying in part the Motion for Frivolity Review of Defendants
Davidson County Sheriff's Office and Xyzeidria Ensley.
(Doc. No. 43.) In that order, the District Court instructed
Bostic that the proper governmental defendant to his claims
was Metro Government, not the DCSO, because the DCSO
“is an agency or unit of the Metropolitan Government of
Nashville and Davidson County . . . and is not a suable
entity itself.” (Id. at PageID# 186-87
(quoting Abdulkarim v. Metro. Sheriff Dep't, No.
3:15-cv-00040, 2015 WL 569868, at *2 (M.D. Tenn. Feb. 11,
2015)).). In response to the District Court's order (Doc.
No. 43), Bostic filed a motion to voluntarily dismiss the
DCSO as a defendant (Doc. No. 50) and a motion to amend his
complaint (Doc. No. 51).
Judge Bryant granted both motions and substituted Metro
Government for the DCSO as a defendant on November 23, 2015,
but did not order summonses issued to serve process on Metro
Government as a newly named defendant. (Doc. No. 89.) It
appears from the record that Metro Government was not served
with that order. (Id.) Nor was it served with
Bostic's Amended Complaint. (Doc. No. 92.)
March 23, 2016, Metro Government filed a motion to dismiss
for failure to state a claim and insufficient service of
process. (Doc. No. 105.) On July 1, 2016, Magistrate Judge
Bryant ordered service of process on Metro Government be
executed by the U.S. Marshal Service on Bostic's behalf.
(Doc. No. 122.) Metro Government was served on July 8, 2016.
(Doc. No. 126.) It filed its Motion to Remand on July 29,
2016. (Doc. No. 128.)
rule of unanimity, now codified in the removal statute,
requires that all defendants “who have been properly
joined and served” must agree to remove a case from
state to federal court to properly invoke federal
jurisdiction. 28 U.S.C. § 1446(b)(2)(A); Loftis v.
United Parcel Serv., 342 F.3d 509, 516 (6th Cir. 2003).
While section 1446 addresses defendants who have been served
at the time a removal notice is filed, the right to file a
motion to remand is preserved by statute for defendants upon
whom process is served after removal. 28 U.S.C. § 1448;
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,