Tatum v. ADT Security Services, Inc. et al

Filing 29

ORDER granting 24 Motion for Permission to Appeal; pursuant to 28 U.S.C. § 1292 (b), this court's 22 Memorandum Opinion and Order is AMENDED to add the following certification: This Memorandum Opinion and Order involves a controlling qu estion of law as to which there is substantial ground for difference of opinion and an immediate appeal from this order may materially advance the ultimate termination of this litigation. Signed by Honorable Judge W. Harold Albritton, III on 4/11/12. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

ETHEL TATUM,
Plaintiffs,
vs.
ADT SECURITY SERVICES, INC.;
RODNEY KENNEDY; CASEY COLVIN,
DEFENDER SECURITY COMPANY
f/d/b/a DEFENDER DIRECT; A-C, etc.,
Defendants.

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CIVIL ACTION NO. 3:12cv110-WHA
(wo)

ORDER
This cause is before the court on the Plaintiff’s Request for Permission to Appeal (Doc. #
24) and Defendants’ Response in Opposition (Doc. #27).
The Plaintiff, Ethel Tatum (“Tatum”), originally filed a Complaint in the Circuit Court of
Macon County, Alabama on July 13, 2011. In the original Complaint, the Plaintiff alleged that
she is a resident of Alabama, Defendant ADT Security Services (“ADT”) is a foreign
corporation, Defendants Rodney Kennedy (“Kennedy”) and Casey Colvin (“Colvin”) are
believed to be residents of Alabama, and Defendant Defender Security Company (“Defender”) is
a foreign corporation. Therefore, complete diversity of citizenship did not exist on the face of
the Complaint. Tatum had Summonses by certified mail issued to both Kennedy and Colvin c/o
Defender at its Indiana address. Answers were filed by all Defendants except Colvin. On
January 6, 2012, Tatum refiled the Complaint with an Alias Summons showing a Georgia
address for Colvin. Tatum was provided that address for Colvin by Defendant Defender, his

former employer. Tatum was informed that the Defendants could not verify Colvin’s address.
The Summons was returned showing that Colvin had moved. Colvin has never been served.
Defendants ADT, Kennedy, and Defender filed a Notice of Removal on February 6,
2012. The Notice alleged that, contrary to the allegations in the Complaint, Defendant Kennedy
was not an Alabama resident, but a resident of Georgia. As to Colvin, the Notice alleged that he
was a former employee of Defender, that Tatum’s new Summons showed a Georgia address for
him, and that the case was removed within 30 days of the issuance of the Alias Summons. The
Defendants contend that the issuance of the Alias Summons by the Plaintiff constituted an “other
paper from which it may first be ascertained that the case is one which is or has become
removable,” and thus the removal was timely pursuant to 28 U.S.C. § 1446 (b).
The Plaintiff filed a Motion to Remand, stating both that removal was untimely and that
the requisite amount was not in controversy. She does not contest that Defendant Kennedy is
not a resident citizen of Alabama, but contends that removal was untimely because the
Defendants had knowledge of Colvin’s Georgia address, and advised Tatum of it by letter, more
than 30 days before the removal. Defendants responded that they had been unable to locate
Colvin and merely gave Tatum’s counsel the last known address they had.
This court concluded both that the removal was timely and that the requisite amount was
in controversy. The Plaintiff only seeks to appeal the timeliness issue.
In determining that the Defendants’ removal was timely, the case having been removed
within 30 days following issuance of the Plaintiff’s Alias Summons which indicated for the first
time on the record that there was complete diversity, the court applied the reasoning of previous
cases from this district, including Clingan v. Celtic Life Ins. Co., 244 F. Supp. 2d 1298, 1302-03

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(M.D. Ala. 2003); Crews v. National Boat Owners Association Marine Ins. Agency, Inc., No.
2:05cv1057-MEF, 2006 WL 902269 (M.D. Ala. April 6, 2006); Mendez v. Central Garden &
Pet Co., 307 F. Supp. 2d 1215 (M.D. Ala. 2003). The Eleventh Circuit has not ruled on this
issue. Therefore, the timeliness of a removal after an Alias Summons which indicated diversity
of the parties for the first time, but more than 30 days after a complaint which on its face did not
show complete diversity of parties, when the address in the Summons was provided to the
Plaintiff, but could not be verified, by the Defendants, is a controlling threshold jurisdictional
question of law as to which there is a substantial ground for difference of opinion, and an
immediate appeal which would determine whether the case is properly heard by this court may
materially advance the ultimate termination of this litigation. See 28 U.S.C. § 1292.
Therefore, it is hereby ORDERED as follows:
1. The Plaintiff’s Request for Permission to Appeal (Doc. #24) is GRANTED.
2. Pursuant to 28 U.S.C. § 1292 (b), this court’s Memorandum Opinion and Order
entered on March 19, 2012, is AMENDED to add the following certification:
This Memorandum Opinion and Order involves a controlling question of law as to which
there is substantial ground for difference of opinion and an immediate appeal from this order
may materially advance the ultimate termination of this litigation.

DONE this 11th day of April, 2012.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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