United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION, AND ORDER
R. Zwart United States Magistrate Judge.
removed Plaintiffs' complaint to this forum from the
Lancaster County District court on January 23, 2018.
(Filing No. 1). Plaintiffs moved to remand on
February 5, 2018, (Filing No. 6), arguing the
removal was untimely and that Defendants failed to file a
copy of the process, pleadings, and orders with their removal
notice as required under 28 U.S.C. § 1446(a).
For the following reasons, the motion to remand should be
February 25, 2014, Plaintiffs filed a complaint in the
Lancaster County District Court, naming the Nebraska
Department of Correctional Services (“DCS”), and
Diane Sabatka-Rine, Warden of the Nebraska State Penitentiary
(“NSP”), Denise Skrobecki, Warden of the Nebraska
Correctional Center for Women (“NCCW”), and
Michael L. Kenney, Director of DCS, in their official
capacities as Defendants. (Filing No. 6-3).
Sabtka-Rine, Skrobecki, and Kenney were served at their
respective business addresses. (Filing No. 9-1, at
CM/ECF pp. 3-11). Defendants, Michael Kenney, Denise
Skrobecki, and Diana Sabatka-Rine, in their individual
capacities only, and DCS, moved to dismiss. (Filing No.
6-4). During the hearing on Defendants' motion to
dismiss, Plaintiffs' counsel acknowledged that Kenney,
Skrobecki, and Sabatka-Rine were served in their individual
capacities, and not their official capacities. (Filing
No. 9-1, at CM/ECF pp. 15-16).
leave of the court, Plaintiffs filed an amended complaint on
June 10, 2014. The amended complaint no longer named DCS or
any Defendant in his or her official capacities as
defendants. Instead, Plaintiff sued Sabatka-Rine, Skrobecki,
and Kenney, in their individual capacities. (Filing No.
6-5). Defendants moved to dismiss. (Filing No.
6-7). The motion to dismiss was denied on August 12,
2015. (Filing No. 6-2, at CM/ECF p. 5). An Answer
was filed on behalf of Defendants Kenney, Skrobecki, and
Sabatka-Rine, in their individual capacities only.
(Filing No. 6-6). While the Answer also purportedly
responded on behalf of DCS, DCS was no longer a party when
the Answer was filed.
and Defendants filed cross-motions for summary judgment.
Defendants' motion was denied; Plaintiffs' motion was
granted and judgment was entered in favor of Plaintiffs by
the Lancaster County District Court on February 2, 2016.
(Filing No. 6-9; 6-10). That judgment was appealed.
It was reversed and remanded by the Nebraska Supreme Court,
with the opinion entered on September 29, 2017, and its
mandate issued on October 23, 2017. (Filing No.
remand to the Lancaster County District Court, Plaintiffs
filed a Second Amended Complaint on January 2, 2018, seeking
injunctive relief only and naming DCS, and Scott Frakes,
Director of DCS, Denise Davidson, Warden of NCCW, and Robert
Madsen, Warden of NSP, in their official capacities only, as
Defendants. (Filing No. 6-12; 6-13; 6-14). It was
served on January 5, 2018. (Filing No. 1-1, at
CM/ECF pp. 11-19). Defendants filed a notice for
removal, with the Second Amended Complaint and January 5,
2018 service documents attached, on January 23, 2018.
(Filing Nos. 1; 1-1; 6-15).
U.S.C. § 1441(a) allows removal by a defendant of
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction.” Defendants were required to file the
petition for removal within thirty days after receipt of the
initial pleading. 28 U.S.C. § 1446(b). This
“thirty-day period to file a notice of removal runs
from the time that a defendant is served with the complaint,
even when the defendant is a later-served defendant and does
not receive service until the time limit during which the
first-served defendant could have removed the case has
expired.” Brown v. Tokio Marine & Fire Ins.
Co., 284 F.3d 871, 873 (8th Cir. 2002).
this case was initially filed and until its removal to this
forum, it was pending in the District Court of Lancaster
County, Nebraska. As such, Nebraska law dictated and governed
how Defendants were properly served. Under Nebraska law,
The State of Nebraska, any state agency as defined in section
81-8, 210, and any employee of the state as defined in
section 81-8, 210 sued in an official capacity may be served
by leaving the summons at the office of the Attorney General
with the Attorney General, deputy attorney general, or
someone designated in writing by the Attorney General, or by
certified mail or designated delivery service addressed to
the office of the Attorney General.
Rev. Stat. § 25-510.02 (1).
on the facts of record, Plaintiffs' initial complaint was
served on Sabtka-Rine, Skrobecki, and Kenney at their
respective business addresses, not by delivery to the
Attorney General's Office. As such, the Attorney
General's Office entered an appearance and moved to
dismiss on behalf of Sabtka-Rine, Skrobecki, and Kenney, in
their individual capacities. Plaintiffs responded by filing
their First Amended Complaint against Sabtka-Rine, Skrobecki,
and Kenney in their individual capacities only. So
irrespective of who held the positions during the various
stages of Plaintiffs' lawsuit, the Director of DCS, the
Warden of NSP, and the Warden of NCCW, in their official
capacities only, were never properly served with
Plaintiffs' Complaint, and they were neither named nor
served with Plaintiffs' First Amended Complaint.
January 5, 2018, when the Second Amended Complaint alleging
official capacity claims against the DCS director, the NSP
warden, and the NCCW warden was served on the Attorney
General's Office, these official capacity defendants were
not “served with the complaint.” Brown,
284 F.3d at 873. Since the 30-day time limit for removal does
not begin until service is effectuated, the removal ...