One Bank & Trust NA v. Bonilla et al

Filing 28

ORDER granting 11 Motion to Remand to State Court and remanding this case to the Circuit Court of Pulaski County, Arkansas and all other motions are denied as moot. Signed by Judge Brian S. Miller on 9/8/11. (hph)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
ONE BANK & TRUST
v.

PLAINTIFF
CASE NO. 4:11CV00582 BSM

WILLIAM D. BONILLA, Individually, and
JONATHAN BONILLA, as Successor Trustee of the
William D. Bonilla Irrevocable Trust

DEFENDANTS

WILLIAM D. BONILLA, Individually, and
JONATHAN BONILLA, as Successor Trustee of the
William D. Bonilla Irrevocable Trust
THIRD-PARTY PLAINTIFFS
v.
THE BURGESS GROUP, INC.,
STEVEN BURGESS, ELIZABETH BURGESS,
PACIFIC LIFE INSURANCE COMPANY, and
RON YOUNG

THIRD-PARTY DEFENDANTS

ORDER
Defendants William D. Bonilla and Jonathan Bonilla’s motion to remand [Doc. No.
11] is GRANTED.
I. BACKGROUND
Plaintiff One Bank & Trust, N.A. filed a complaint in state court against the Bonillas
on April 1, 2011. The Bonillas answered on June 20, 2011, and impleaded third-party
defendants The Burgess Group, Inc., Steven Burgess, Elizabeth Burgess (hereinafter
collectively, “the Burgesses”), Pacific Life Insurance Company, and Ron Young. The thirdparty defendants were served no later than July 12, 2011, and the Burgesses removed the

action to federal court on July 22, 2011. Neither Ron Young nor Pacific Life consented to
the removal. The Bonillas move to remand on the grounds that the removal was filed by a
third-party defendant without the consent of all defendants. The Burgesses contend that
removal was proper.
II. LEGAL STANDARD
The jurisdiction of federal courts is narrowly confined and must be established as a
threshold matter. Godfrey v. Pulitzer Pub. Co., 161 F.3d 1137, 1141 (8th Cir.1998). The
burden of establishing federal subject matter jurisdiction rests upon the party seeking
removal and opposing remand. In re Bus. Men’s Assurance Co. of Am., 992 F.2d 181, 183
(8th Cir. 1993). When faced with a motion for remand, a district court is required to “resolve
all doubts about federal jurisdiction in favor of remand.” Id.
III. DISCUSSION
Removal was improper, and the case should be remanded to state court from which
it was removed.
Although the Fifth and Eleventh Circuits disagree, the majority rule is that third-party
defendants brought into a state action by the original defendant may not remove the case to
federal court. 14C Wright, Miller, Cooper & Steinman, Federal Practice and Procedure §
3730, at 432-34 (4th ed. 2009). The Eighth Circuit appears to have adopted this view in
Lewis v. Windsor Door Co., 926 F.2d 729, 733 (8th Cir. 1991). Furthermore, longstanding
precedent in this district accords with the majority rule. See Fiblenski v. Hirschback Motor

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Lines, Inc., 304 F. Supp. 283, 285 (E.D. Ark. 1969).
The Burgesses were made third-party defendants in this action while it was pending
in state court. Therefore, they are not “defendants” within the meaning of 28 U.S.C. § 1441
and had no power to remove the action to federal court. The Bonillas’ consent arguments
need not be addressed.
Accordingly, the Bonillas’ motion to remand is GRANTED, and this case is hereby
remanded to the Circuit Court of Pulaski County, Arkansas, and all other motions are denied
as moot.
IT IS SO ORDERED this 8th day of September 2011.

________________________________
UNITED STATES DISTRICT JUDGE

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