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Gillpatrick v. Frakes

United States District Court, D. Nebraska

February 26, 2018

PAUL GILLPATRICK, and NICCOLE WETHERELL, Plaintiffs,
v.
SCOTT FRAKES, Director, in their official capacities; DENISE DAVIDSON, Warden, in their official capacities; and ROBERT MADSEN, Warden, in their official capacities; Defendants.

          FINDINGS, RECOMMENDATION, AND ORDER

          Cheryl R. Zwart United States Magistrate Judge.

         Defendant 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 denied.

         STATEMENT OF FACTS

         On 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).

         With 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.

         Plaintiffs 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. 6-11).

         Upon 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).

         ANALYSIS

         28 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).

         When 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.

         Neb. Rev. Stat. § 25-510.02 (1).

         Based 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.

         Until 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 ...


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