The opinion of the court was delivered by: BARRY
The City of Newark, on behalf of defendant Newark Police Department ("Newark"),
moves to remand this action to state court or, alternatively, to dismiss the complaint of plaintiff Margaret Kelly Michaels as time-barred under the applicable statutes of limitations, for failure to comply with certain provisions of the New Jersey Tort Claims Act, and for failure to state a claim upon which relief can be granted. For the reasons that follow, Newark's motion will be granted in part and denied in part, and the complaint will be dismissed as to Newark.
This litigation arises out of the alleged unconstitutional prosecution and conviction of a nursery school teacher for bizarre acts of sexual abuse against many of the children for whom she was responsible.
In September 1984, the Wee Care Nursery School ("Wee Care") hired Michaels ("Michaels" or "plaintiff"), then a twenty-two year old college student, as a teachers' aide for preschoolers. Approximately one month later, Michaels became a teacher at Wee Care, a position she held until April 26, 1985.
Located in Maplewood, New Jersey, Wee Care served approximately fifty families, with enrollment of about sixty children, ages three to five. During the eight-month period that Michaels worked at Wee Care, parents began to observe behavioral changes in their children. Michaels, 136 N.J. at 304. One such parent, after hearing from her son about certain incidents regarding Michaels, alerted the New Jersey Division of Youth and Family Services ("DYFS"). Id. at 304-05. Having been apprised by DYFS on May 1, 1985 of the information the mother had relayed, the Essex County Prosecutor's Office commenced an investigation of possible sexual abuse at Wee Care. Id. at 305.
As a result of its investigation, the Essex County Prosecutor's Office arrested Michaels on June 12, 1985, on charges of what plaintiff describes as "child molestation." Complaint, Count One at P 22. After a trial in the Superior Court of New Jersey, which commenced on June 22, 1987 and concluded on April 15, 1988, a jury convicted Michaels of 115 counts of aggravated sexual assault, sexual assault, endangering the welfare of children, and terroristic threats. Michaels, 136 N.J. at 305-06. On August 2, 1988, the trial court sentenced Michaels to an aggregate term of forty-seven years imprisonment with fourteen years of parole eligibility. Id. at 306.
On March 26, 1993, the Appellate Division of the Superior Court reversed the conviction and remanded the criminal proceedings for a new trial, concluding that the prosecution's interviews and interrogations of the allegedly abused children were highly improper. Michaels, 264 N.J. Super. at 629-32. The Appellate Division ordered that, in the event the prosecution decided to retry the case, a pretrial hearing would be necessary to determine whether the statements and testimony of those children should be excluded from evidence as untrustworthy. Id. at 631-32.
On June 23, 1994, after granting certification on the limited issue of the pretrial hearing, the Supreme Court of New Jersey affirmed the Appellate Division's reversal and remand, and required the prosecution, in the event of a retrial, to prove the reliability of the children's statements by "clear and convincing" evidence:
We find that the interrogations that occurred in this case were improper and there is a substantial likelihood that the evidence derived from them is unreliable. We therefore hold that in the event the State seeks to re-prosecute this defendant, a pretrial hearing must be held in which the State must prove by clear and convincing evidence that the statements and testimony elicited by the improper interview techniques nonetheless retains a sufficient degree of reliability to warrant admission at trial. Given the egregious prosecutorial abuses evidenced in this record, the challenge that the State faces is formidable. If the statements and proffered testimony of any of the children survive the pretrial hearing, the jury will have to determine the credibility and probative worth of such testimony in light of all the surrounding circumstances.
Michaels, 136 N.J. at 324.
The decision was subsequently made not to retry Michaels and, on December 1, 1994, all criminal charges against her were formally dismissed. Complaint, Count One at P 25.
On February 27, 1995, Michaels filed a notice of tort claim with each of the named defendants in this case pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:8-1 et seq. Certification of Steven C. Mannion ("Mannion Cere."), P 5 and Exhibit B. Michaels filed the instant complaint in the Superior Court on June 13, 1996, and served defendants on June 25, 1996. On July 25, 1996, defendants the Essex County Prosecutor's Office, Glenn Goldberg, Herbert Tate, George L. Schneider, Sarah Sencer-McArdle, and John Mastroangelo, apparently with the "consent" of all the other defendants with the exception of Newark, removed the action to this court.
A. Newark's Motion to Remand
The federal removal statute provides that a "defendant or defendants" desiring to remove a state court action to federal court shall file in the federal district court a notice of removal within thirty days after receipt by the removing defendant of the initial pleading or service of summons. 28 U.S.C § 1446(a) and (b). Notwithstanding the ambiguity of the requirements a "defendant or defendants" must satisfy under this statute, it is a well-settled rule of law -- commonly known as the "rule of unanimity" -- that all defendants must join in or consent to the removal petition. Gableman v. Peoria, Decatur and Evansville Railway Co., 179 U.S. 335, 337, 45 L. Ed. 220, 21 S. Ct. 171 (1900); Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 44 L. Ed. 1055, 20 S. Ct. 854 (1900); Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995) (citations omitted); Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985) (citing Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270 (7th Cir. 1982)); Ogletree v. Barnes, 851 F. Supp. 184, 186 (E.D.Pa. 1994) (removal perfected when all defendants join in or otherwise consent to the removal petition); Stangard Dickerson Corp. v. United Electrical, Radio & Machine Workers of America, Local 1218, 33 F. Supp. 449, 451 (D.N.J. 1940) (removal valid when one defendant signed removal petition and remaining defendants filed separate paper consenting to the petition).
The two principal issues raised in Newark's motion to remand are: (1) whether an exception to the "rule of unanimity" exists that would excuse a defendant's failure to join in or consent to the removal petition; and (2) whether the removing defendants in a multiple-defendant case must memorialize or evidence their joinder or consent in writing.
1. "Nominal Party" Exception To The "Rule Of Unanimity"
The Court of Appeals for the Third Circuit has held that the "unanimity rule" may be disregarded where: (1) a non-joining defendant is an unknown or nominal party; (2) a defendant has been fraudulently joined; or (3) a non-resident defendant has not been served at the time the removing defendants filed their petition. Balizik, 44 F.3d at 213, n. 4 (citations omitted).
At least as currently pled, Newark is a nominal party to this lawsuit. The claims asserted, and the facts alleged, in the complaint are limited to the investigation and prosecution of Michaels by the Essex County Prosecutor's Office for her alleged involvement in the sexual abuse of children while working at Wee Care. The complaint contains no allegations, nor can it reasonably be inferred, that this investigation and prosecution was conducted by or had any connection with Newark. Indeed, not a single individual defendant named in the complaint -- not even one of the one-hundred fictitious defendants -- is alleged to have had any such connection.
The only allegation in the entire complaint having anything to do with Newark is contained in Count Three, which provides, in pertinent part, as follows:
2. The defendants State of New Jersey, Attorney General, Newark Police Department, County of Essex, Essex County Prosecutor and Division of Youth and Family Services were responsible for the training and supervision of employees and other personnel in the use of proper investigative techniques, involving children and other witnesses or victims.
4. The defendants and each of them were negligent in that they failed to adequately and properly train and supervise employees and other personnel involved in the investigation and prosecution of Margaret Kelly Michaels.
Complaint, Count Three, PP 2 and 4.
While certainly Newark is responsible for training its own employees, there is no allegation that any employee of Newark participated in the investigation or prosecution of plaintiff or that Newark trained or supervised anyone who was so involved. Because no allegation links Newark with any activities that form the basis of plaintiff's claims for relief, there is no reasonable basis for predicting that Newark will be held liable to plaintiff. Consequently, and separate and apart from plaintiff's failure to state a claim against Newark, see Point B. 3. infra, Newark must be deemed a nominal party for removal purposes. See Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir. 1993) (a defendant having "no connection" to tortious conduct alleged in complaint, and "engaging in no independent alleged wrongdoing," held to be a nominal party for removal purposes); Farias v. Bexar City Board of Trustees, 925 F.2d 866, 872 (5th Cir.) (non-removing defendants deemed nominal parties where "plaintiff could in no way establish a cause of action" against them), cert. denied, 502 U.S. 866 (1991).
2. Writing Required to Memorialize Joinder in or Consent to the Removal Petition
The removal petition, which was signed only by counsel representing the Essex County Prosecutor's Office, Glenn Goldberg, Herbert Tate, George L. Schneider, Sarah Sencer-McArdle, and John Mastroangelo (referred to collectively as either the "signing defendants" or, along with the "non-signing defendants,"
as the "removing defendants") stated as follows:
5. Defendants the State of New Jersey, the Attorney General's Office, the Division of Youth and Family Services, the County of Essex, and the Essex County Police Department have consented to the removal of the State Court Action to this Court.
Removal Petition, P 5 (emphasis supplied). Newark contends that the reference in the petition to the non-signing defendants' consent, without more, is insufficient to satisfy the "rule of unanimity" under 28 U.S.C. § 1446(a). The removing defendants disagree, arguing that such a representation of consent satisfies their statutory obligation.
Although no case in this district has addressed this precise issue, there is some limited support for the removing defendants' position. See, e.g., Chrysler First Financial Services Corp. v. Greenfield, 753 F. Supp. 939, 941 (S.D.Fla. 1991) (remanding the action because "the other defendants . . . have not joined in the United States' petition for removal, nor has the United States indicated on the face of the removal petition whether the remaining defendants agree to removal"); Jasper v. Wal-Mart Stores, Inc., 732 F. Supp. 104, 105 (M.D.Fla. 1990) (holding that "the petition must be signed by all defendants or the signer must allege consent of all defendants"); Mechanical Rubber & Supply Co. v. American Saw & Manufacturing Co., 810 F. Supp. 986, 990 (C.D.Ill. 1990) (denying remand motion where one defendant represented in the removal petition that the other defendant "joined in the removal," but required the signing defendant to obtain an affidavit from the non-signing defendant manifesting its assent to removal).
Most courts, however, have held that it is not enough for defendants who have not signed the removal petition to merely advise the removing defendant that they consent thereto, or for a removing defendant to represent such consent to the court on behalf of the other defendants. Rather, most courts require all defendants to voice their consent directly to the court. Martin Oil Co. v. Philadelphia Life Insurance Co., 827 F. Supp. 1236, 1239 (N.D.W.Va. 1993). See also Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262, n. 11 (5th Cir. 1988) ("While it may be true that consent to removal is all that is required under section 1446, a defendant must do so itself"); Landman v. Borough of Bristol, 896 F. Supp. 406, 409 (E.D.Pa. 1995) ("Unfortunately for both, one defendant's attempt to speak on behalf of another will not suffice") (citations omitted); Creekmore v. Food Lion, Inc., 797 F. Supp. 505, 509 (E.D.Va. 1992) (although defendants "never objected to removal, proper removal does not depend on the absence of such objection"); Fellhauer v. City of Geneva, 673 F. Supp. 1445, 1447-48 (N.D.Ill. 1987) (requiring all defendants to "communicate their consent to the court -- not to one another"); Mason v. International Business Machines, Inc., 543 F. Supp. 444, 445 (M.D.N.C. 1982) (same).
While courts generally do not require all defendants to sign the removal petition itself, most courts have required some form of unambiguous written evidence of consent to the court in timely fashion. See, e.g., Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994) ("To 'join' a motion means to support it in writing") (citations omitted); Getty, 841 F.2d at 1262, n. 11 ("This does not mean that each defendant must sign the original petition for removal, but there must be some timely filed written indication from each served defendant . . . that it actually consented to such action"). Moreover, although relatively few courts have permitted defendants to voice their consent orally, even these courts have required that the oral consent be directed to the court, not merely among the defendants themselves. See, e.g., Clyde v. National Data Corp., 609 F. Supp. 216, 218 (D.C.Ga. 1985); Colin K. v. Schmidt, 528 F. Supp. 355, 358 (D.R.I. 1981).
The majority view reflects sound judicial policy. While requiring all defendants in a multiple-defendant case to sign the removal petition itself would be a senseless formalism, timely written evidence of joinder or consent from each defendant such as by filing its own notice of removal, an affidavit of joinder or consent, or even a letter provides the court with a written entry that would unequivocally bind the allegedly consenting defendants. On the other hand, "to allow one party, through counsel, to bind or represent the position of other parties without their express consent to be so ...