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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

YOLANDE MARIE HERBERT, Personal

Representative of the Estate of

Marie Herminie Barron, Deceased,

Plaintiff, No. 09-CV-12314-DT

vs. Hon. Gerald E. Rosen

DANNIE RAY BAKER, LT. THOMAS

DIAZ and OFFICER JOHN HANKINS,

Defendants.

_________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION

TO REMAND CASE TO WAYNE COUNTY CIRCUIT COURT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on October 22, 2009 

PRESENT: Honorable Gerald E. Rosen

 Chief Judge, United States District Court

I. INTRODUCTION

This matter is presently before the Court on Plaintiff Yolande Marie Baker’s

Motion to Remand this case to the Wayne County Circuit Court where it was originally

filed. Defendants have responded to Plaintiff’s Motion, and Plaintiff has replied. Having

reviewed and considered the parties’ briefs and the Court’s entire record of this matter,

the Court has determined that oral argument is not necessary. Therefore, pursuant to

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 Baker had been court-ordered to spend weekends incarcerated at the Inkster

Police Department for the offense of driving on a forged license.

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Eastern District of Michigan Local Rule 7.1(e)(2), this matter will be decided on the

briefs. This Opinion and Order sets forth the Court’s ruling.

II. FACTUAL BACKGROUND

On November 9, 2007, Defendant Dannie Ray Baker (“Baker”) appeared at the

Inkster Police Department for a scheduled incarceration.1

 Immediately upon his

appearance, Defendant Lieutenant Diaz detected alcohol on Baker’s breath. A

breathalyzer test was subsequently administered which indicated that Baker’s blood

alcohol content was in excess of the legal limit to operate a motor vehicle in the State of

Michigan. Pursuant to City of Inkster policy, Lieutenant Diaz refused to allow the

intoxicated Baker to remain in jail for his scheduled incarceration and instructed

Defendant Officer Hankins to escort Baker out of the police station. According to

Plaintiff, neither Lieutenant Diaz nor Officer Hankins took any action to ensure that

Baker would not be operating a motor vehicle upon his release from the police station.

After he was released, Baker drove his motor vehicle away from the station, and

soon thereafter struck the motor vehicle being driven by Plaintiff’s decedent, resulting in

her death. This lawsuit ensued.

III. PROCEDURAL HISTORY

Plaintiff originally filed her Complaint in this matter against Defendants Baker, the

City of Inkster, the City of Inkster Police Department, and “Officer John Doe 1” in the

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 Although the Court has not been provided a copy of Plaintiff’s original

Complaint, it appears from the record that, as originally filed, Plaintiff’s wrongful death

complaint alleged only state law negligence claims; no federal Section 1983 claims were

asserted in the original Complaint. See City of Inkster Police Department’s Response to

Plaintiff’s Motion to Amend the Complaint, at Ex. E to Defendants’ Aug. 17, 2009

Supplemental Brief to Plaintiff’s Motion to Remand, Dkt. # 20.

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 After the case had been pending in state court for more than a year, on April 7,

2009, Plaintiff, through new counsel, filed a motion to set aside the stipulation and order

dismissing the City of Inkster in the Wayne County Circuit Court. This motion was

never ruled upon by the state court prior to removal. On September 28, 2009, more than

three months after the case was removed, Plaintiff filed in this Court a “Supplemental

Motion to Set Aside the Stipulation and Order Dismissing City of Inkster.” This motion

is currently pending before Magistrate Judge Michael Hluchaniuk.

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 The City of Inkster, however, denies being served with notice of any new claims

against it after its dismissal from the case.

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Wayne County Circuit Court on April 15, 2008.2 Shortly thereafter, the City of Inkster

was dismissed from the case, with prejudice, pursuant to a Stipulation and Order entered

by the Wayne County Circuit Court on May 29, 2008.3

 Thereafter, on June 3, 2008,

Defendant Baker filed cross-claims against the City of Inkster, City of Inkster Police

Department, and Officer John Doe 1.4

On May 5, 2009, the Inkster Police Department moved for, and was granted,

summary disposition on all claims against it. The state court granted this motion because

the Police Department is not a sueable entity. See Plaintiff’s Reply to Defendant’s

Response to Plaintiff’s Supplemental Motion to Set Aside Stipulation and Order

Dismissing the City of Inkster, Dkt. # 29, p. 3. See also Damron v. Pfannes, 785 F.

Supp. 644, 646 (E.D. Mich. 1992) (“A municipal police department is not a legal entity

separate from its parent city.”) Plaintiff was thereafter permitted to amend her complaint

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to replace her “John Doe” Defendant with named police officers, Lieutenant Diaz and

Officer Hankins, and included federal civil rights violations in the allegations against

them. After they were served with process, on June 16, 2009, Defendants Diaz and

Hankins removed the case to this Court asserting federal question jurisdiction pursuant to

42 U.S.C. § 1983 as the basis for federal court jurisdiction. Defendant Dannie Baker

thereafter filed a notice joining in the removal on July 13, 2009.

On July 14, 2009, Plaintiff filed the instant Motion to Remand the case back to

Wayne County Circuit Court. In this motion, Plaintiff contends that removal was

improper because Defendants Dannie Ray Baker, City of Inkster, and City of Inkster

Police Department did not join in the removal to this Court.

III. DISCUSSION

A. DEFENDANT BAKER TIMELY JOINED IN REMOVAL.

Under 28 U.S.C. § 1443, a civil case initially brought in State court can be

removed by the defendant(s) to federal court “for any act under color of authority derived

from any law providing for equal rights, or for refusing to do any act on the ground that it

would be inconsistent with such law.” In this case, the Plaintiff alleged in her Amended

Complaint that Lieutenant Diaz and Officer Hankins acted under color of state law in

depriving Plaintiff’s decedent of her rights guaranteed under the Fourteenth Amendment

to the United States Constitution, a violation of her 42 U.S.C. § 1983 rights, providing a

valid basis for removal to this Court.

Removal, however, is deemed to be procedurally deficient under 28 U.S.C. §

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1446(a) if all defendants do not join in the removal in a timely manner. Hernandez v.

Seminole County, 334 F.3d 1233, 1237 (11th Cir. 2003). The time period required for

joinder in the petition is within thirty days of filing of the removal, or if the defendant was

not a party to the case at the time of the petition filing, within thirty days of being served

as a defendant. See Page v. City of Southfield, 45 F.3d 128, 131-32 (6th Cir. 1995). If a

defendant who is a necessary party fails to join in the removal petition within this time,

the case is to be remanded back to State court. Knickerbocker v. Chrysler Corp., 728

F.Supp. 460, 462 (E.D. Mich. 1990).

In this case, however, contrary to Plaintiff’s assertion in her Motion to Remand,

Defendant Dannie Ray Baker did “affirmatively and timely join in the removal” by

voluntarily joining in the motion to remand on July 13, 2009. [See Defendant Baker’s

Notice of Joinder in Notice of Removal, Dkt. # 6.] This was within 30 days of the June

16, 2009 filing of the Notice of Removal. See Mehney-Eghan v. Mendoza, 124 F. Supp.2d

467, 473 (E.D. Mich. 2000). Plaintiff mentions a series of suggested omissions and

typographical errors made in the Notice of Removal, but none of these rise to a level

indicating a lack of informed consent; a notice of removal is only required to contain “a

short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). All

necessary information to obtain consent from Defendant Baker was provided in the

Notice of Removal, thus the joinder in removal by Baker was valid.

B. BEING NON-PARTIES AT THE TIME OF REMOVAL, THE CITY OF

INKSTER AND THE CITY OF INKSTER POLICE DEPARTMENT WERE

NOT REQUIRED TO JOIN OR CONCUR IN THE REMOVAL 

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 It matters not that Plaintiff now disputes the propriety of the stipulation

authorizing the dismissal of the City, with prejudice. Challenges to removal jurisdiction

require an inquiry into the circumstances at the time the notice of removal is filed. When

removal is proper at that time, subsequent events do not require remand. See, e.g., Van

Meter v. State Farm Fire & Cas. Co., 1 F.3d 445, 450 (6th Cir.1993) (characterizing

removal jurisdiction as “necessarily tied to a temporal reference point, namely the time of

removal”); Spencer v. U.S. Dist. Ct., 393 F.3d 867, 871 (9th Cir. 2004); see also In re

Shell Oil, 966 F.2d 1130, 1133 (7th Cir.1992) (stating that nothing in the text or

legislative history of § 1447(c) alters the “traditional view” that “jurisdiction present at

the time a suit is filed or removed is unaffected by subsequent acts”).

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Plaintiff does not dispute that the City of Inkster and the Inkster Police Department

had been dismissed as party-defendants in this action long before this case was removed. 

Not being party-defendants, these entities were not required to join in or concur in the

removal.5

 Plaintiff asserts, however, that for removal to have been valid, the City of

Inkster and the City of Inkster Police Department nonetheless had to have timely joined

or concurred in the removal because of Baker’s third-party cross claims against the City

and the Police Department.

However, a cross-claim may only be asserted between co-parties. See Fed. R. Civ.

P. 13(g); see also Wake v. United States, 89 F.3d 53, 62 (2nd Cir. 1996). “A cross-claim

cannot be asserted against a party who was dismissed from the action previous to the

assertion of the cross-claim.” Wake, 89 F.3d at 62-63 (quoting Glaziers and

Glassworkers Union v. Newbridge Securities, 823 F. Supp. 1188, 1190 (E.D. Pa. 1993)

(internal quotations omitted)). “However, if the original claim against the party is

dismissed on the merits, any cross-claims previously filed against that party may remain.” 

Glaziers, 823 F.Supp. at 1190 (emphasis added).

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In this case, Baker filed an improper cross-claim against both the City of Inkster

and the City of Inkster Police Department. The City of Inkster was dismissed with

prejudice on May 29, 2008. Baker filed his cross-claim against the City of Inkster and the

City of Inkster Police Department on June 3, 2008. Baker’s cross-claim against the City

of Inkster was not properly asserted against a co-party because when Baker filed his

cross-claim, the City was no longer a party to the action. Further, “[a] municipal police

department is not a legal entity separate from its parent city.” Damron v. Pfannes, 785 F.

Supp. 644, 646 (E.D. Mich. 1992). Thus, the City of Inkster Police Department being

part of the same municipality as the City of Inkster, the Department was arguably also

cleared of all claims against it at this time as it was legally a non-party at the time

Defendant Baker filed his cross-claim.

However, even assuming arguendo that Baker’s cross-claim against the City of

Inkster and the Inkster Police Department remained viable at the time of removal, there

still would have been no requirement that these entities, as “cross-defendants,” join or

concur in the removal of the principal complaint.

28 U.S.C. § 1441 states, in relevant part:

(a) Except as otherwise expressly provided by Act of Congress, 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 the

defendants, to the district court of the United States for the district and

division embracing the place where such action is pending. . . .

As the Sixth Circuit held in First National Bank of Pulaski v. Curry, 301 F.3d 456

(6th Cir. 2002), a third-party defendant is not a “defendant” as that term is used in §

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1441(a). Id. at 461-63. This, in fact, is the majority view. “The majority view [is] that

third-party defendants may not remove under § 1441(a).” Id. at 461-62., quoting

Johnston v. St. Paul Fire & Marine Ins. Co., 134 F. Supp 2d 879, 880 (E.D. Mich. 2001)

and Schmidt v. Ass’n of Apt. Owners, 780 F. Supp. 699, 702 (D. Haw. 1991) (“The

majority view is that the determination of who is a defendant is determined by the original

complaint, not subsequent third or fourth-party complaints.”).

The Sixth Circuit explained:

As we have often noted, the removal statutes are to be narrowly construed. 

See, e.g., Long [v. Bando Mfg. of Am., Inc.,] 201 F.3d [754,] 757 [(6th Cir.

2000)] (“Because they implicate federalism concerns, removal statutes are

to be narrowly construed.”): Brierly v. Alusuisse Flexible Packaging, Inc.,

184 F.3d 527, 534 (6th Cir. 1999) (“In interpreting the statutory language,

we are mindful that the statutes conferring removal jurisdiction are to be

construed strictly because removal jurisdiction encroaches on a state court’s

jurisdiction.”), cert. denied, 528 U.S. 1076, 120 S.Ct. 790, 145 L.Ed.2d 667

(2000). In construing the federal removal statutes strictly, we have relied

upon Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85

L.Ed. 1214 (1914). In that case the Supreme Court held that a state court

plaintiff against whom the defendant had filed a counterclaim could not

remove to federal court under the statutory predecessor to § 1441(a). The

Shamrock Oil Court noted that, between 1875 and 1887, the removal statute

gave the right of removal to “either party,” se id. at 105,but that Congress

had amended the provision in 1887 to allow removal “only ‘by the

defendant or defendants therein.’” Id. at 104 (quoting § 1441(a)). The

Court concluded that Congress intended “to narrow the federal jurisdiction

on removal” in amending the statute int his way, id. at 107, and thus that

congressional intent bound the Court to deny plaintiffs the right to remove

even if the plaintiffs were subjected to a counterclaim by the defendant. In

reaching this conclusion, the Court also ruled that the states’ important

interest in the independence of their courts required “strict construction” of

the removal statutes. Id. at 108-09. . . .

Although Shamrock Oil is not dispositive of the precise issue before

us, it does dictate that the phrase “the defendant or the defendants,” as used

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in § 1441(a), be interpreted narrowly, to refer to defendants in the

traditional sense of parties against whom the plaintiff asserts claims. This

interpretation of “the defendant or the defendants” is bolstered by the use of

more expansive terms in other removal statutes. Title 28 grants removal

power in bankruptcy cases to any “party,” see 28 U.S.C. § 1452(a), a

broader grant of power that courts have interpreted to extend to third party

defendants. [Citation omitted.] Title 28 also allows removal by any

“foreign state” against which an action is brought in state court, see 28

U.S.C. § 1441(d), and courts have interpreted that grant to include foreign

states that are third-party defendants. [Citation omitted.] By contrast, §

1441(a)’s grant of removal power is much more limited instilling a right of

removal only in the defendant or the defendants. See, e.g., Johnston, 134 F.

Supp. 2d at 880 (noting that the terms “defendant” and “third-party

defendant” “typically are understood as referring to distinct parties”). . . . 

Thus construing the removal statute narrowly, we conclude that third-party

defendants do not a statutory right of removal pursuant to § 1441(a).

301 F.3d at 462-63.

Not being “defendants” entitled to exercise a right of removal, it follows that, as

third-party defendants, the City of Inkster and the City of Inkster Police Department were

not required to join in Defendants Diaz and Hankins’ removal of this action.

CONCLUSION

For all of the foregoing reasons, the Court finds that removal of this case was

proper as all served party-defendants joined in the removal. Therefore,

IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand [Dkt. # 7] is

DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

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Dated: October 22, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record

on October 22, 2009, by electronic and/or ordinary mail.

s/Ruth Brissaud 

Case Manager

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