The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
WILLIAM ROY FLOWERS and SHELLY
BURRIS,
Plaintiffs,
v. Case No. 20-cv-236-JFH
WAGONER COUNTY BOARD OF
COUNTY COMMISSIONERS, et al.,
Defendants.
ORDER
Before the Court is the Motion to Remand filed by Plaintiffs William Roy Flowers and
Shelly Burris (“Plaintiffs”) [Dkt. No.13]. Plaintiffs argue remand is appropriate because not all
defendants, namely Deborah Ann Dochery (“Dochery”), consented to the removal. See Dkt. No.
13 at 5. Defendants Board of County Commissioners of Wagoner County, Chris Elliot and John
Denton (“Defendants”) filed a Response contending Dochery’s consent to removal was not
necessary because she was not properly served. Dkt. No. 14.
BACKGROUND
The named defendants in this action are Wagoner County Board of County Commissioners,
Chris Elliot, Chad Lewis Eiden, John Denton and Dochery. Dkt. No. 2-2. Defendants Wagoner
County Board of Commissioners, Chris Elliot and John Denton filed the Notice of Removal. Dkt.
No. 2. The Notice of Removal does not indicate whether Chad Lewis Eiden1 and Dochery consent
to the removal. See id.
1 Neither party addresses the significance of Chad Lewis Eiden.
Plaintiffs filed the Motion to Remand arguing Dochery was properly served and her failure
to consent to the removal is fatal. See Dkt. No. 13. Defendants respond Dochery was not properly
served and, therefore, her consent is not required. See Dkt. No. 14. Defendants point out that the
summons was mailed to Dochery via certified mail, delivery was not restricted and the certified
mail receipt does not indicate who received the delivery. Id. at 2. Instead, the certified mail receipt
states “COVID 19.” Id. Defendants contend such service does not comply with the Oklahoma
Pleading Code. Id. at 1-2.
Defendants state “[n]othing in the record indicates that Defendant Dochery received notice
of Plaintiffs’ suit either. Defendant Dochery has not entered an appearance or filed any responsive
pleading.” Dkt. No. 14 at 2. However, a review of the docket in the state court action in the
District Court of Wagoner County, CJ-2020-159, reveals that Dochery and Chad Lewis Eiden
(“Eiden”) entered an appearance in the case on July 15, 2020. See Oklahoma Supreme Court
Network, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=wagoner&number=cj-
2020-159 (last visited on September 14, 2020).2 Neither Defendants nor Plaintiffs address this
fact.
ANALYSIS
“Because the jurisdiction of federal courts is limited, there is a presumption against our
jurisdiction.” Bd of County Comm’rs of Boulder County v. Suncor Energy (U.S.A.) Inc., 965 F.3d
792, 813 (10th Cir. 2020). “Statutes conferring jurisdiction on federal courts are to be strictly
construed, and doubts resolved against federal jurisdiction.” Id. (quoting F&S Const. Co. v. Jensen,
2 This Court may take judicial notice of the state court records available online. See Stack v.
McCotter, 79 Fed. Appx. 383, No. 02-4157, 2003 WL 22422416 (10th Cir. Oct. 24, 2003)
(unpublished); see also Shoulders v. Dinwiddie, No. CIV-06-890, 2006 WL 2792671, at *3 (W.D.
Okla. Sep. 26, 2006).
337 F.2d 160, 161 (10th Cir. 1964)). “The presumption against jurisdiction also applies with full
force to removal.” Id. at 814; see also Urban Financial REO, LLC v. Atwood, No. 19-CV-39,
2019 WL 4307128, at *1 (N.D. Okla. Sep. 11, 2009) (“the Court strictly construes the removal
statute and, as a general matter, must resolve all doubts against removal.”) (citing Fajen v. Found.
Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir.1982)); see also Warner v. CitiMortgage, Inc.,
533 Fed. Appx. 813, 816 (10th Cir. 2013); see also Farmland Nat. Beef Packing Co., L.P. v. Stone
Container Corp., 98 Fed. Appx. 752, 756 (10th Cir. 2004). “Procedural requirements established
by Congress for gaining access to the federal courts are not to be disregarded . . . .” Hickey v.
Brennan, 969 F.3d 1113, 1118 (10th Cir. 2020) (citation and quotation omitted).
Defendants removed this action from the District Court of Wagoner County pursuant to 28
U.S.C. § 1441(a). See Dkt. No. 2. Section 1446 of Title 28 of the United States Code governs the
procedure for removal. Section 1446(b) requires “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). This
requirement is commonly referred to as the “unanimity rule.” Bruning v. City of Guthrie, Okla.,
101 F.Supp.3d 1142, 1144 (W.D. Okla. 2015). The lack of unanimous consent is a procedural
defect warranting remand. Maddox v. Delta Airlines, No. 10-CV-456, 2010 WL 3909228, at *4
(N.D. Okla. Sep. 29, 2010); see also Farmland, 98 Fed. Appx. at 756. The removing party has the
burden of showing that removal was properly accomplished. Village Apartments Company, LP v.
Asset Shelters Group, Inc., No. 07-CV-817, 2008 WL 11414603, at *2 (D.N.M. Apr. 29, 2008);
McShares, Inc. v. Barry, 979 F. Supp. 1338, 1342 (D. Kan. 1997); Scheall v. Ingram, 930 F. Supp.
1448, 1449 (D. Colo 1996). .
Here, the entry of appearance by Eiden and Dochery in the state court action suggests they
were properly joined and served. However, Eiden and Dochery have not provided their consent
to removal as required by 28 U.S.C. § 1446(b)(2)(A). No explanation is given for Defendants
failure to obtain consent from Eiden and Dochery. Scheall, 930 F. Supp. At 1449 (“A petition
filed by less than all the named defendants is considered defective if it fails to contain an
explanation for the absence of co-defendants.”). The Court recognizes the timing of the entry of
appearance and the Notice of Removal could reasonably lead to the issue presently before the
Court. However, the issue should have been properly addressed when the instant Motion was
filed.
Nevertheless, it is Defendants’ burden to prove the case has been properly removed.
Further, this Court is required to construe 28 U.S.C. § 1446(b)(2)(A) strictly and resolve doubts in
favor of remand. Eiden and Dochery have not provided their consent to the removal as required
by 28 U.S.C. § 1446(b)(2)(A). Thus, the removal is procedurally defective and the case must be
remanded.
IT IS THEREFORE ORDERED that Plaintiffs William Roy Flowers and Shelly Burris’
Motion to Remand [Dkt. No.13] is GRANTED.
DATED this 14th day of September, 2020.
____________________________________
JOHN F. HEIL, III
UNITED STATES DISTRICT JUDGE