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Case 8:13-cv-01441-JSM-AEP Document 14 Filed 07/11/13 Page 1 of 8 PageID 148

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EDWIN S. ZARR, pro se,

Plaintiff,

v.

Case No. 8:13-cv-1441-T-30AEP

RICHARD A. LUCE, individually and in his
official capacity; BERNIE McCABE,
individually and in his official capacity,
GLENN MARTIN, individually and in his
official capacity; BOB GUALTIERI,
individually and in his official capacity,
DOMINICK J. MARCHESIELLO,
individually and in his official capacity,

Defendants.

_____________________________________/

ORDER

THIS CAUSE comes before the Court upon Plaintiff’s Objection to Removal and

Motion to Remand (Dkt. 8) and Defendant, Bob Gualtieri’s, Response to Plaintiff’s

Objection to Removal and Motion to Remand (Dkt. 10). The Court, having reviewed the

motion, state court documents, and being otherwise advised in the premises, concludes the

motion to remand should be granted.

Plaintiff Zarr, proceeding pro se, brought a single cause of action under 42 U.S.C. §

1983 against Defendants, the Sheriff of Pinellas County, a sitting Circuit Court judge, the

State Attorney for the Sixth Judicial District, an Assistant State Attorney, and a Deputy

Sheriff of Pinellas County. The complaint alleges that the Defendants collectively violated

Zarr’s due process rights by refusing to turn over to him seven audio cassette tapes. The

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tapes are recordings of Zarr’s interviews with various law enforcement officers and allegedly

contain exculpatory content. Although Zarr does not explain how this deprivation caused

him injury, it is clear from prior actions filed by Zarr that he believes this evidence would

have prevented his 2001 conviction in Pinellas County for conspiracy to commit first degree

murder, attempted first degree murder, arson, and possession of a manufactured fire bomb.1

Zarr seeks declaratory relief and an injunction ordering Defendants to transfer custody of

these tapes to him.

Defendant Bob Gualtieri, as Sheriff of Pinellas County, removed the action to federal

court based on federal question jurisdiction. According to the notice of removal, only

Gualtieri and Defendant Bernie McCabe, the State Attorney for the Sixth Judicial Circuit,

had been served with the summons and complaint in this case at the time of removal. A

review of the attached state court documents indicates that Defendants Gualtieri and McCabe

were both served on May 3, 2013. Although Gualtieri removed this action alone, the notice

of removal indicates that counsel for McCabe consented to the removal.

Zarr now moves to remand the case to the Circuit Court in and for Pinellas County,

Florida. He argues that removal was improper for two reasons: (1) the complaint alleged

only “his State claim on behalf of himself under Title 42 U.S.C. § 1983 strictly suing under

the color of state law,” therefore failing to raise federal question jurisdiction; and (2)

Defendants failed to properly remove because not all the Defendants signed the notice of

removal. For the reasons stated below, although the Court has federal question jurisdiction,

1Zarr brought a substantially similar action last year. See Zarr v. Luce, 8:12-cv-1468-MSS-

EAJ, Dkt. 9.

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Zarr’s motion to remand must be granted because Defendant McCabe failed to properly

consent to removal within the required thirty-day period.

Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be removed by the defendant or

defendants, to the district court of the United States.” 28 U.S.C. § 1441(a). “The district

courts shall have original jurisdiction of all civil actions arising under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1331. A § 1983 claim is a congressionally-

created, federal cause of action. Plaintiff Zarr’s objection to removal is based upon a

misinterpretation of that statute. Although he is correct that a § 1983 claim may be brought

in state court, federal courts have original jurisdiction over those claims and removal is

permitted under § 1441.

The procedural requirements for removal are set forth in 28 U.S.C. § 1446. A

defendant or defendants desiring to remove any civil action to federal court must sign a

notice of removal pursuant to Rule 11 of the Federal Rules of Civil Procedure and state the

grounds for removal. 28 U.S.C. § 1446(a). “When a civil action is removed solely under

section 1441(a), all defendants who have been properly joined and served must join in or

consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). Any defect in the removal

procedure is grounds for remand. 28 U.S.C. § 1447(c). Moreover, removal statutes are

strictly construed and any doubts must be resolved in favor of remand. See, e.g., Miedema

v. Maytag Corp., 450 F.3d 1322, 1328 (11th Cir. 2006).

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Zarr objects to removal on the basis that not all the Defendants joined in the notice of

removal. According to the notice of removal, only Defendants Gualtieri and McCabe had

been served at the time of removal, thus only their consent was required at the time of filing

the notice of removal. As mandated by statute, Gualtieri filed the state court documents

along with the notice of removal. Deputy Sheriff Kevin McSweeney signed the return of

service for McCabe, indicating that service was effectuated on May 3, 2013. Gualtieri’s

attorney properly signed the notice and indicated that McCabe’s attorney consented to the

removal.

However, “[t]o show that all defendants have consented to removal, and, thus, that the

rule of unanimity has been followed, courts have held that the removing defendant must do

more than simply state in the removal notice that all defendants consent to removal.” Smith

v. Health Ctr. of Lake City, Inc., 252 F. Supp. 2d 1336, 1339 (M.D. Fla. 2003); see Mitsui

Lines Ltd. v. CSX Intermodal Inc., 564 F. Supp. 2d 1357, 1360 (S.D. Fla. 2008) (“The

‘unanimity requirement’ mandates that in cases involving multiple defendants, all defendants

must join the removal petition or otherwise manifest consent for removal to be proper within

the meaning of § 1447(c).”). Indeed, “to effect removal ‘each defendant must join in the

removal by signing the notice of removal or by explicitly stating for itself its consent on the

record, either orally or in writing, within the 30-day period prescribed by 28 U.S.C. §

1446(b).’” Diebel v. S.B. Trucking Co., 262 F. Supp. 2d 1319, 1328 (M.D. Fla. 2003)

(quoting Nathe v. Pottenberg, 931 F. Supp. 822, 825 (M.D. Fla. 1995)).

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However, this Court has recognized three exceptions to the unanimity rule: “(1) the

non-consenting defendants had not been served with process at the time the notice of removal

was filed; (2) the unconsenting defendants are nominal or formal defendants; or (3) removal

is pursuant to § 1441(c).” Diebel, 262 F. Supp. 2d at 1329 (quoting Bradwell v. Silk

Greenhouse, Inc., 828 F. Supp. 940, 943 n.2 (M.D. Fla. 1993)). Gualtieri argues that

McCabe is a nominal defendant whose consent was not required or, in the alternative, that

he did sufficiently consent to removal. The Court finds that McCabe is not an nominal

defendant and he failed to sufficiently consent within the statutory thirty-day period.

Generally, “nominal or formal parties, being neither necessary nor indispensable, are

not required to join in the petition for removal.” Smith v. Health Ctr. of Lake City, 252 F.

Supp. 2d 1336, 1339 n.5 (M.D. Fla. 2003) (quoting Tri-Cities Newspapers, Inc. v. Tri-Cities

Printing Pressmen & Assistants’ Local 349, Int’l Printing Pressmen & Assistants’ Union of

N.A., 427 F.2d 325, 327 (5th Cir. 1970)).2 This determination turns on whether the named

defendant has no interest in the outcome of the action and in whose absence the plaintiff can

obtain sufficient relief. Hernandez v. Ferris, __ F. Supp. 2.__, 2012 WL 6913632, at *2

(M.D. Fla. Nov. 14, 2012); see Ti-Cities Newspapers, Inc., 427 F.2d 325 (“The ultimate test

of whether the . . . defendants are . . . indispensable parties . . . is whether in the absence of

the defendant, the Court can enter a final judgment consistent with equity and good

conscience which would not be in any way unfair or inequitable to plaintiff.”). “Whether a

2The Eleventh Circuit adopted as its precedent all decisions of the former Fifth Circuit
handed down before close of business on October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc).

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party is necessary or indispensable ‘depends on the facts in each case.’” Diebel, 262 F. Supp.

2d at 1330 (quoting Tri-Cities Newspapers, Inc., 427 F.2d at 327)).

The complaint makes no factual allegations directly related to McCabe’s actions,

merely his status: “Defendant, Bernie McCabe, is elected as a State Attorney in and for the

Sixth Judicial Circuit Court, Pinellas County, Florida. He is legally responsible for the

supervision over his appointed assistant State Attorney’s [sic].” Dkt. 2, Compl. ¶ 5. The

complaint states that “[e]ach Defendant is sued individually and in his official capacity.” Id.

at ¶ 9. Zarr does not seek monetary damages from the Defendants. Rather, he seeks a

declaratory judgment that his due process rights were violated under the Florida and federal

constitutions by Defendants’ failure to turn over exculpatory material in his criminal case and

an injunction ordering the Defendants to locate and transfer seven audio cassette tape

recordings to him.

Gualtieri argues that McCabe is a nominal defendant because Zarr’s complaint fails

to state a viable cause of action against McCabe based on the Eleventh Amendment and

prosecutorial immunity.3 Although Zarr’s complaint will likely fail because his proper

redress is through a state court remedy or a petition for habeas corpus,4 the issue that must

3 The Court also notes that the majority of Zarr’s complaint would be subject to dismissal
based on res judicata principles because of his previous case in the Middle District of Florida before
the Honorable Mary S. Scriven. See Zarr v. Luce, 8:12-cv-1468-MSS-EAJ. Additionally, like that
case, Zarr’s § 1983 claim is time-barred.

4 Because Zarr did not allege that his state court conviction has been invalidated, Zarr cannot
bring a § 1983 claim for money damages. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (holding
that no prisoner may recover damages under § 1983 for an “unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction
or sentence invalid” unless the plaintiff first proves “that the conviction or sentence has been
(continued...)

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be decided on a motion to remand is whether McCabe is a nominal or formal defendant.

McCabe clearly has a stake in the outcome of this case, even if he has a valid defense to suit,

and it cannot be said that his interest is merely incidental compared to the real party in

interest.5 Thus, McCabe is not a nominal defendant and his consent to removal was

necessary.

“Like all rules governing removal, the unanimity requirement must be strictly

interpreted and enforced because of significant federalism concerns arising in the context of

removal jurisdiction.” Diebel, 262 F. Supp. 2d at 1328 (quoting Russell Corp. v. Am. Home

Assurance Co., 264 F.3d 1040, 1044 (11th Cir. 2001)). It is undisputed that McCabe, via his

attorney, did not properly join in the removal of this case to federal court by either signing

the notice of removal or “by explicitly stating for itself its consent on the record, either orally

or in writing, within the 30-day period prescribed by 28 U.S.C. § 1446(b).” Diebel, 262 F.

Supp. 2d at 1328; see also Beard v. Lehman Bros. Holdings, Inc., 458 F. Supp. 2d 1314,

1321 (M.D. Ala. 2006) (holding that “consent must be express, not implied,” thus filing an

answer or a motion to dismiss is an insufficient expression of consent). McCabe was served

on May 3, 2013, and the time has now lapsed for him to file a notice of consent.

Accordingly, Zarr’s motion to remand is granted.

4(...continued)

reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a writ
of habeas corpus, 28 U.S.C. § 2254").

5Defendants’ argument that this Court should find a defendant to be a nominal party because
it can enter a final judgment that is not unfair to the plaintiff nullifies the Court’s subject matter
jurisdiction principles. The Court must first find it has jurisdiction over the case before it rules on
the merits.

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Zarr requests attorney’s fees and costs in the amount of $600.00 pursuant to 28 U.S.C.

§ 1447(c). “Absent unusual circumstances, courts may award fees under § 1447(c) only

where the removing party lacked an objectively reasonable basis for seeking removal.”

Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Not only does Zarr fail to

substantiate his claim for $600.00, Defendants had a reasonable basis for seeking removal.

Indeed, remand is only warranted because of a procedural defect, not a substantive one. As

such, Zarr’s request for attorney’s fees and costs is denied.

It is therefore ORDERED AND ADJUDGED that:

1.

2.

Plaintiff’s Objection to Removal and Motion to Remand (Dkt. 8) is

GRANTED for the reasons stated herein.

The Clerk of Court is directed to REMAND this case to the Circuit Court for

the Sixth Judicial Circuit in and for Pinellas County, Florida, and provide that

court with a copy of this Order.

3.

The Clerk of Court is directed to close this case and terminate any pending

motions as moot.

DONE and ORDERED in Tampa, Florida on July 11, 2013.

Copies furnished to:
Counsel/Parties of Record

S:\Odd\2013\13-cv-1441.mtremand.frm

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