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Bostic v. Biggs

United States District Court, M.D. Tennessee, Nashville Division

January 13, 2017

JAMES E. BOSTIC, Plaintiff,
v.
SHARA BIGGS, ET AL., Defendants.

          TRAUGER, JUDGE

          ALISTAIR E. NEWBERN, United States Magistrate Judge

         To: The Honorable Aleta A. Trauger

         REPORT AND RECOMMENDATION

         The 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.)

         Pending 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.

         I. Background

         At the time Plaintiff James E. Bostic filed his Complaint, [1] he 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.)

         Bostic 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.)

         The 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).

         Magistrate 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.)

         On 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.)

         II. Analysis

         The 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., ...


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