James v. McDaniel et al

Filing 22

ORDER declining to adopt the Report and Recommendation 12 and finds that the Motion to Remand 4 is due to be DENIED, as set out. Signed by Judge Kristi K. DuBose on 4/19/2016. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LURIE D. JAMES, III,
as Personal Representative of
the Estate of
LURIE JAMES, SR., Deceased,
Plaintiff,
vs.
CURTIS McDANIEL; ALLSTATE
INSURANCE COMPANY, et al.,
Defendants.

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CIVIL ACTION 16-51-KD-M

ORDER
This matter is before the Court on Plaintiff’s Motion to Remand, Defendant’s Opposition,
and Plaintiff’s Reply (Docs. 4, 5, 10, and 11). On March 16, 2016, the Magistrate Judge issued a
Report and Recommendation, which addressed these filings. (Doc. 12). Defendant filed his
objection on March 28, 2016. (Doc. 14). The Report and Recommendation recommended that
Plaintiff’s Motion to Remand be granted. However, as discussed herein, the Court declines to
adopt the Report and Recommendation and finds that the Motion to Remand is due to be
DENIED.
I.

Background
On December 18, 2015, Plaintiff, Laurie D. James, (“James” or “Plaintiff”) filed a

wrongful death action against Curtis McDaniel (“McDaniel”) and Allstate Insurance Company
(“Allstate”), in the Circuit Court of Conecuh County, Alabama. (Doc. 1-1). Allstate was served
on December 23, 2015, and filed its Answer on January 19, 2016. (Doc. 1-2; 1-1 at p.7).
McDaniel was served on January 4, 2016, and filed its Notice of Removal on February 2, 2016
(Doc. 1). According to the Notice, removal is warranted because the parties are diverse and the

amount in controversy exceeds $75,000.00. (Id). In her Motion to Remand, Plaintiff argues that
this action is due to be remanded because “(1) fewer than all Defendants joined in the removal of
this action, rendering the removal procedurally defective; and (2) the Notice of Removal was
filed forty-one days after the first Defendant was served, which was untimely.” (Doc. 5 at 1).1
II.

Motion to Remand (Docs. 4-5)
When McDaniel filed its Notice of Removal on February 2, 2016, Allstate did not sign

the Notice. (Doc. 1). However, McDaniel’s Notice of Removal states, “[c]ounsel for McDaniel
has corresponded with counsel for Allstate, and all Defendants consent to this removal, thereby
satisfying the unanimity requirement…” (Doc. 1 at 2). Allstate filed its Consent to Removal on
February 16, 2016. (Doc. 8).
Relying on this Court’s previous decision in Yezzi v. Hawker Fin. Corp., the Report and
Recommendation recommended that the Motion to Remand (Doc. 4) be granted as Allstate failed
to strictly comply with the unanimity requirement. (Doc. 12 citing Yezzi v. Hawker Fin. Corp.,
2009 WL 4898380, at *1 (S.D. Ala. Dec. 14, 2009). Specifically, the Report and
Recommendation stated:
While McDaniel argues [the statement contained in the notice of removal
indicting Allstate consented to removal] should be acceptable because attorneys
are officers of the Court, he has presented no authority to support his position and
the Court is unaware of any such precedent. To the contrary, the Eleventh
Circuit[2] has found this type of alleged consent to be insufficient. See Ye[z]zi,
supra, 2009 WL 4898380 at *2 (“Mere assertion in the removal petition that all
defendants consent to removal fails to satisfy the joinder requirement.”)(citing
Jones ex rel. Bazerman v. Florida Department of Children & Family Services,
2[]02 F. Supp. 2d 1319, 1328 (S. D. Fla. 2002)).
(Report and Recommendation, Doc. 12 at 5-6)(emphasis added).

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Plaintiff initially argued that McDaniel’s removal was untimely, but Plaintiff has since withdrawn that claim. (See
Doc. 11 at ¶ 7).
2
Though Yezzi collected cases from district courts in the Eleventh Circuit, Yezzi is a district court rather than an
Eleventh Circuit opinion.

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McDaniel objects to the Magistrate Judge’s recommendation and argues that as officers
of the court, attorneys are entitled to a presumption of truthfulness. However, the issue here is
not whether it was true that Allstate communicated to McDaniel that it consented to removal.
Rather, the issue is whether Allstate properly consented to removal by adhering to the required
procedures for doing so. Though it may have been factually accurate that Allstate agreed to
removal, this does not obviate the requirement for Allstate to properly consent to removal as
required in this Court. A defendant cannot rely on a co-defendant to consent to removal on its
behalf. As this Court has previously, held:
[T]his Court, as well as several other courts of this Circuit, have required all
defendants to inform the Court of their joinder in the Notice of Removal in a
manner that is 1) timely and 2) binding. See Leaming v. Liberty University, Inc.,
Not Reported in F.Supp.2d, 2007 WL 1589542 (S.D.Ala., 2007)(“each defendant
must join in the removal by signing the notice of removal or by explicitly stating
for itself its consent on the record, either orally or in writing, within the 30-day
period prescribed in 28 U.S.C. § 1446(b).”) (quoting Diebel v. S.B. Trucking Co.,
262 F. Supp .2d 1319, 1328 (M.D.Fla.2003)); Jones ex rel. Bazerman v. Florida
Department of Children & Family Services, 202 F.Supp.2d 1352, 1355
(S.D.Fla.2002)(Mere assertion in the removal petition that all defendants consent
to removal fails to satisfy the joinder requirement); Lampkin v. Media General,
Inc. ., 302 F.Supp.2d. 1293, 1295 (M.D.Ala.2004) (citation omitted) (noting that
“an official, affirmative, and unambiguous joinder or consent to ... [the] notice of
removal” is required); Mitsui Lines Ltd. v. CSX Intermodal, Inc., 564 F.Supp.2d
1357, 1361 (S.D.Fla. 2008).
Yezzi v. Hawker Fin. Corp., 2009 WL 4898380, at *2 (S.D. Ala. Dec. 14, 2009).
Thus, the Court agrees that McDaniel’s representation that Allstate consented to removal
was procedurally insufficient. However, six years after Yezzi was decided in this Court, the
Eleventh Circuit decided Stone v. Bank of New York Mellon N.A., 609 Fed. App’x. 979 (11th Cir.
2015).3 In Stone, the Eleventh Circuit addressed the unanimity requirement where one of the
defendants opposed plaintiff’s motion to remand, but did not properly join in the removal or file

3

The Court recognizes that non-published opinions are persuasive rather than controlling authority.

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its own timely consent to removal. The Eleventh Circuit affirmed the district court’s denial of
plaintiff’s motion to remand stating:
A defendant or defendants wishing to remove an action from a state court to a
federal court must comply with certain procedural requirements. See 28 U.S.C. §
1446. . . .The requirement that all defendants consent to and join a notice of
removal in order for it to be effective is referred to as the “unanimity rule.” Bailey
v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir. 2008). Like all
rules governing removal, the unanimity rule must be strictly interpreted and
enforced because of the significant federalism concerns arising in the context of
federal removal jurisdiction. Russell Corp. v. Am. Home Assur. Co., 264 F.3d
1040, 1049 (11th Cir. 2001). However, like the First Circuit in Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009), “we nevertheless are not
inclined to establish a wooden rule.” A technical defect related to the unanimity
requirement may be cured by opposing a motion to remand prior to the entry of
summary judgment. Id. Although [one of the defendants] did not join the notice of
removal, it did oppose remand, and therefore the district court did not err by
refusing to remand for a technical defect related to the unanimity rule.
Stone v. Bank of New York Mellon, N.A., 609 F. App’x 979, 981 (11th Cir. 2015).
Although the Stone defendant’s opposition to remand was filed more than 30 days after
the last defendant was served (making even acquiescence to removal untimely), the Eleventh
Circuit found that it cured the “technical defect” of not timely joining the removal. Id. Along the
same lines, while Allstate’s consent to removal was not timely filed, they have consented to
removal. Following the guidance provided by Stone, the Court finds that Allstate’s untimely
acquiescence to removal was a curable “technical defect.” Accordingly, the motion to remand
(Doc. 4) is DENIED.
DONE and ORDERED this 19th day of April 2016.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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