# Martin v. Department of Children and Family Services

> District Court, E.D. Louisiana · March 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10185364

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** March 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JULIE MARTIN, ET AL. CIVIL ACTION

VERSUS NO. 19-11876-WBV-MBN

DEPARTMENT OF CHILDREN SECTION: “D” (5)
AND FAMILY SERVICES, ET AL.

ORDER AND REASONS
Before the Court is a Motion to Remand, filed by plaintiffs, Julie Martin,
individually and as wife of Jason Mitchell, and Jason Mitchell, individually and as
administrator of the estate of the minor children A.M. & C.M.1 The Motion is
opposed.2 After considering the briefs submitted by the parties and the applicable
law, for the reasons expressed below, the Motion to Remand is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Julie Martin, individually and as wife of Jason Mitchell, and Jason Mitchell,
individually and as administrator of the estate of the minor children A.M. and C.M.
(“Plaintiffs”), filed a Petition for Damages in the Twenty-Second Judicial District
Court for the State of Louisiana on June 25, 2019, naming as defendants the State of
Louisiana through the Department of Children and Family Services (“DCFS”), and
three DCFS employees, Delaunda Dykes Bordelon, Jessica Gilbert, and Danielle

1 R. Doc. 5.
2 R. Doc. 7.
Trosclair, in their individual and official capacities.3 Plaintiffs allege that their two
minor children were taken into the custody of DCFS on or about September 25, 2018
after one of the minor children made a disclosure of sexual abuse by her father, Jason

Mitchell.4 Plaintiffs allege that DCFS tried to permanently remove the minor
children from Plaintiffs’ home after determining that the allegation of abuse was
valid, even after DCFS received copies of text messages allegedly showing that the
child admitted that she lied about the claim and that “he didn’t do anything.”5
Plaintiffs appealed the decision of DCFS in state court, and on March 12, 2019, the
decision was reversed.6

Plaintiffs subsequently filed this action alleging violations of 42 U.S.C. § 1983.7
On July 25, 2019, Delaunda Dykes Bordelon and Jessica Gilbert, through the
Louisiana Attorney General, filed a Notice of Removal, alleging that this Court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1331.8 Specifically, Defendants
assert that Plaintiffs’ Petition for Damages alleged a violation of federal law, 42
U.S.C. § 1983.
On August 23, 2019, Plaintiffs filed a Motion to Remand, asserting that the

Notice of Removal was procedurally defective under 28 U.S.C. §§ 1441(c)(1) and (c)(2),
and because DCFS did not join in the removal and did not clearly and expressly waive
its 11th Amendment immunity.9 Plaintiffs first allege that Defendants failed to

3 R. Doc. 1-5.
4 Id. at ¶¶ 7, 8.
5 Id. at ¶¶ 12, 14.
6 Id. at ¶ 15.
7 R. Doc. 1-5.
8 R. Doc. 1.
9 Id.
obtain the consent of Danielle Trosclair for the removal, claiming that, “The failure
to file on behalf of Ms. Trosclair or get her consent is inexcusable despite proper
service not being obtained.”10 Plaintiffs argue that, “The attempted service on Ms.

Trosclair and the State’s awareness of suit against one of its employees is effective
for purposes of triggering the consent requirement of the rule of unanimity.”11
Plaintiffs further argue that the State of Louisiana has not timely waived its 11th
Amendment immunity for this Court to have subject matter jurisdiction.12 Plaintiffs
note that the State of Louisiana, through DCFS, was served with the state court
Petition on July 19, 2019, and that Gilbert and Bordelon were served on July 9,

2019.13 Relying upon La. R.S. 13:5106, Plaintiffs assert that suits against the State
of Louisiana or a state agency shall not be instituted in any court other than a
Louisiana state court, and that the State has failed to clearly and expressly waive its
11th Amendment immunity to suit in federal court.14
Defendants oppose the Motion to Remand, arguing that removal was proper
and that Plaintiffs misunderstand both the rule of unanimity and the requirement of
an authorized and clear expressed waiver of immunity.15 Regarding Plaintiffs’

argument that Defendants failed to obtain the consent of Trosclair, the non-served
defendant, Defendants argue that consent is only required by those defendants, “(1)
who have been served; and, (2) whom the removing defendant(s) actually knew or

10 R. Doc. 5 at p. 3.
11 Id. at p. 4.
12 Id. at pp. 4-6.
13 Id. at p. 6.
14 Id. at p. 6.
15 R. Doc. 7.
should have known had been served.”16 Defendants assert that they did not need to
obtain Trosclair’s consent to removal because Trosclair had not been served when the
Notice of Removal was filed. Defendants concede that while service was attempted

on Trosclair at DCFS, service could not be effectuated because it was attempted at an
office where Trosclair did not work and, therefore, she was not there to accept
service.17
Defendants further assert that DCFS was not properly served at the time of
removal and, therefore, its consent was also not required. Citing 28 U.S.C. 1446
(b)(2)(A), Defendants argue that, “the clear language and meaning of the removal

statutes indicate that consent of non-served defendants is not required for removal.”18
Defendants point to La. R.S. 39:1538(4), which provides that, “process shall be served
upon the head of the department concerned, the office of risk management, and the
attorney general, as well as any others required by R.S. 13:5107.”19 Defendants
assert that, pursuant to these statutes, Plaintiffs must obtain service on the following
three agents to perfect service on DCFS: (1) the Secretary of DCFS; (2) the Louisiana
Attorney General; and (3) the Office of Risk Management.20 Defendants assert that

Plaintiffs failed to serve DCFS because they have only served the Louisiana Attorney
General.21 Defendants also point out that Plaintiffs’ argument that the State of
Louisiana has not consented to the removal is academic because Bordelon and Gilbert

16 R. Doc. 7 at p. 3 (quoting Mistead Supply Co. v. Casualty Ins. Co. 797 F. Supp. 569, 573 (W.D. Tex.
July 31, 1992)) (internal quotation marks omitted).
17 R. Doc. 7 at p. 5.
18 Id. at p. 3.
19 Id. at p. 5
20 Id.
21 Id. at p. 6.
consented to the removal for the State of Louisiana, since they were each sued in their
official capacities.22 Defendants contend that a suit against the official is a suit
against the official’s office and, as such, is no different from a suit against the State

itself.23 Defendants argue that the State of Louisiana consented to the removal
through the actions of its officers, Bordelon and Gilbert, who were sued in their
official capacities and consented to the removal by filing the Notice of Removal.
Regarding Plaintiffs’ argument that the State failed to waive its 11th
Amendment immunity to suit in federal court, Defendants distinguish the State’s
sovereign immunity from its 11th Amendment immunity.24 Relying upon Supreme

Court precedent, Defendants argue that by removing suits to federal court, States
waive their 11th Amendment immunity to suits for damages in federal court (i.e.,
waiver by removal).25 Citing Meyers v. Texas, Defendants explain that, “[A] sovereign
enjoys two kinds of immunity that it may choose to waive or retain separately---
immunity from suit and immunity from liability.”26 The Fifth Circuit in Meyers
further held that
[T]he Constitution guarantees a state’s prerogative, by its
own law, to treat its immunity from liability as separate
from its immunity from suit for purposes of waiver or
relinquishment. For these reasons, we conclude that the
Constitution permits and protects a state’s right to
relinquish its immunity from suit while retaining its

22 Id.
23 Id. (quoting Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989)) (quotation marks omitted).
24 R. Doc. 7 at pp. 7-8.
25 Id. at p. 7 (citing Lapides v. Bd. Of Regents, 535 U.S. 613,122 S.Ct. 1640, 152 L.Ed.2d 806 (2002);
Meyers v. Texas, 410 F.3d 236, (5th Cir. 2005) cert denied 550 U.S. 917, 127 S.Ct. 2126, 167 L.Ed.2d
862 (2007)).
26 R. Doc. 7 at p. 8 (quoting Meyers v. Texas, 410 F.3d 236, 252-53) (internal quotation marks omitted).
immunity from liability, or vice versa, but that it does not
require a state to do so.27

II. LAW AND ANALYSIS
A. Removal was not defective for lack of unanimous consent by
defendants.

A defendant may remove “any civil action brought in a State court of which the
district courts of the United States have original jurisdiction.”28 “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.”29 If consent of all
served defendants is not timely obtained, the removal is procedurally defective.30
Subject matter jurisdiction must exist at the time of removal to federal court, based
on the facts and allegations contained in the complaint.31 The removal statute, 28
U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal
should be resolved in favor of remand.32 Remand is proper if at any time the court
lacks subject matter jurisdiction.33
In this matter, Plaintiffs argue that removal was procedurally defective
because the Defendants failed to obtain consent to the removal from all of the named
defendants, namely Trosclair. Plaintiffs assert that the State of Louisiana was served

27 R. Doc. 7 at p. 8 (quoting Meyers, 410 F.3d at 255) (internal quotation marks omitted).
28 28 U.S.C. § 1441(a).
29 28 U.S.C. § 1446(b)(2)(A).
30 Doe v. Kerwood, 969 F.2d 165, 167-69 (5th Cir. 1992); see also Wade v. Fireman’s Fund Ins. Co., 716
F. Supp. 226, 231 (M.D. La. 1989) (“The failure of all defendants to timely join in removal does not
deprive the Court of jurisdiction over the subject matter and constitutes a procedural defect that can
be waived by the plaintiff.”).
31 St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (“jurisdictional facts
must be judged as of the time the complaint is filed”).
32 Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
33 See 28 U.S.C. § 1447(c).
with the state court Petition through DCFS on July 19, 2019, and that Gilbert and
Bordelon were served on July 9, 2019. Plaintiffs further assert that Trosclair, though
not served, is an employee of the State of Louisiana and, therefore, was on notice of

the suit. Defendants, who bear the burden of proving that removal was proper, assert
that: (1) DCFS was not properly served as required under state law; and (2) all
defendants who were properly served at the time of removal consented to the removal.
Defendants note that Plaintiffs concede that service was attempted, but not perfected,
on Trosclair. As a result, Defendants argue that Trosclair was not properly served
and was not required to consent to the removal. Under 28 U.S.C. § 1446(b)(2)(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.”
This action was removed pursuant to 28 U.S.C. §§ 1331, 1441(b), and 1443. As such,
the Court’s inquiry focuses on whether all of the defendants who were properly joined
and served at the time of removal consented to the removal.
The record reflects that the Notice of Removal was filed by the Louisiana
Attorney General, Delaunda Dykes Bordelon and Jessica Gilbert on July 25, 2019.34

The record also reflects proof of service on the Louisiana Attorney General on behalf
of DCFS on July 19, 2019,35 and proof of service on Bordelon and Gilbert on July 9,
2019.36 The record further reflects that service was attempted, but not perfected, as
to Danielle Trosclair on July 9, 2019.37 There are no other defendants in this matter.

34 R. Doc. 1.
35 R. Doc. 5-3.
36 R. Docs. 5-4 & 5-5.
37 R. Doc. 4-5.
Because the record establishes that Plaintiffs had not served Trosclair at the time of
removal on July 25, 2019, her consent was not required to removal this suit.
Additionally, Defendants assert that the service made on the Louisiana

Attorney General was insufficient to effectuate proper service on DCFS under La.
R.S. 39:1538(4) and 13:5107(A)(1) and, therefore, its consent was not required. The
Court agrees, as the record establishes that Plaintiffs did not properly serve DCFS.
The Court also notes, and agrees with, Defendants’ argument that the consent of
DCFS may be academic, since Gilbert and Bordelon, both of whom are employees of
the State through DCFS, were sued in their official capacities. The Supreme Court

has held, “Obviously, state officials literally are persons. But a suit against a state
official in his or her official capacity is not a suit against the official but rather is a
suit against the official’s office. . . As such, it is no different from a suit against the
State itself.”38 Accordingly, the Court finds that Plaintiffs’ argument that the
removal was procedurally defective for lack of unanimity lacks merit.
B. Removal was not defective for lack of the State’s waiver of 11th
Amendment Immunity.

Plaintiffs next argue that removal was procedurally defective since the State
of Louisiana failed to waive its 11th Amendment immunity to suit in federal court. In
Lapides v. Board of Regents of University System of Georgia, the Supreme Court
agreed to decide whether “a state waive[s] its Eleventh Amendment immunity by its
affirmative litigation conduct when it removes a case to federal court.”39 Like in this

38 Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
39 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002).
case, the plaintiff in Lapides named the state of Georgia as a defendant in a case filed
in state court, and the State of Georgia removed the case to federal court. Upon
review, the Supreme Court held, “This Court consistently has found a waiver [of 11th

Amendment immunity] when a State’s attorney general, authorized (as here) to bring
a case in federal court, has voluntarily invoked that court’s jurisdiction.”40 Further,
the Fifth Circuit has expressly held that, “[W]e believe that Lapides’s interpretation
of the voluntary invocation principle, as including the waiver-by-removal rule, applies
generally to any private suit which a state removes to federal court.”41
Such is the case here. The record reflects that the Louisiana Attorney General,

along with Bordelon and Gilbert, filed a Notice of Removal on July 25, 2019, invoking
this Court’s jurisdiction.42 Thus, the Court agrees with Defendants that when
Bordelon and Gilbert removed this suit to federal court in their official capacities as
DCFS employees, it constituted a valid waiver of State of Louisiana’s 11th
Amendment immunity from suit in federal court for money damages. The Court
further finds that Plaintiffs’ reliance on La. R.S. 13:5106 is misguided. That statute
provides that, “No suit against the state or a state agency or political subdivision

shall be instituted in any court other than a Louisiana state court.”43 This suit was
instituted in a Louisiana state court and, thereafter, removed to federal court by the
State. As such, the Court finds Plaintiffs’ argument that the State has failed to
clearly and expressly waive its 11th Amendment immunity is without merit.

40 Id.
41 Meyers v. Texas, 410 F.3d 236, 242 (5th Cir. 2005).
42 R. Doc. 1.
43 La. R.S. 13:5106.
II. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the Motion
to Remand*4 is DENIED.
New Orleans, Louisiana, March 18, 2020.

WENDY B. fn
United States District Judge

Doc. 5.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185364. Public record. Not legal advice.