Emerson v. Maricopa County

Full title: Mary Emerson, a married woman, Plaintiff, v. Maricopa County, a public…

Court: United States District Court, D. Arizona

Date published: Aug 8, 2007

Facts

Emerson alleges that on February 25, 2006, two Maricopa County Sheriff’s deputies, Frank Sloup and Rich Bricklin, physically accosted and detained her at the James Hotel, where the deputies were moonlighting as security guards. She contends that she was a guest at the hotel at the time. Emerson avers that she was charged with resisting arrest and disorderly conduct, but that the charges were subsequently dismissed. Emerson filed an action in the Maricopa County Superior Court against Defendants GM Security and  Consulting, James Hotel Scottsdale, Gray Development Group, Morgans Hotel Group Management (collectively, the “James Hotel Defendants”), and the Maricopa County Defendants on February 16, 2007. Emerson asserts causes of action for various state law torts as well as for violations of her federal civil rights. The federal claims are asserted against the Maricopa County Defendants only. Emerson served her complaint upon most of the James Hotel Defendants on March 5, 2007, and she served the Maricopa County Defendants on April 24, 2007.

The Maricopa County Defendants removed the action to this court on May 23, 2007. (Doc. # 1.) Emerson asserts that remand to the Maricopa County Superior Court is warranted because the Maricopa County Defendants’ removal was untimely under the mandatory 30-day removal window prescribed by 28 U.S.C. § 1446(b). The Maricopa County Defendants respond that removal was timely because the Notice of Removal was filed within 30 days of service upon them. In her Reply, Emerson contends (1) that the 30-day removal clock begins to run when the first defendant is served and (2) that the consent of all served defendants is required for removal. She avers that the Maricopa County Defendants’ removal was defective for these reasons.

Issue

Decision

Emerson’s Motion was made solely on the grounds that the Maricopa County Defendants’ removal was untimely. The quoted language did not provide fair notice of the additional ground for remand, the lack of consent from the James Hotel Defendants. This argument was first raised in Emerson’s Reply, submitted 37 days after the filing of the Notice of Removal. “[T]he critical date is not when a motion to remand is filed, but when the moving party asserts a procedural defect as a basis for remand.” Council of Laborers, 69 F.3d at 1038. Therefore, Emerson has waived the right to assert this defect as a basis for remand. See id.

Due to Emerson’s waiver, and this court’s conclusion that the Maricopa County Defendants’ Notice of Removal was timely under the later-served defendant rule, Emerson’s motion must be denied.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Remand (doc. # 5) is denied.

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