Kolesar v. Evangelical Lutheran Good Samaritan Society et al
ORDER denying pltf's 6 Motion to Remand. Signed by Judge Susan Webber Wright on 4/30/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROBERT KOLESAR as attorney-in-fact
for and on behalf of Vera Kolesar
EVANGELICAL LUTHERAN GOOD
SAMARITAN SOCIETY, ET AL.
NO: 4:11CV00915 SWW
Plaintiff Robert Kolesar commenced this action in state court, and defendants removed
the case, claiming federal subject matter jurisdiction based on diversity of citizenship between
the parties and an amount in controversy exceeding $75,000. Before the Court is plaintiff’s
motion to remand (docket entries #6, #7) and defendants’ response in opposition (docket entries
#11, #12). After careful consideration, and for reasons that follow, the motion to remand will be
On November 21, 2011, plaintiff filed this action in state court, seeking compensatory
and punitive damages for injuries allegedly suffered by his wife, Vera Kolesar, during her stay at
Good Samaritan Campus in Hot Springs (“Good Samaritan Campus”). Plaintiff names
defendants Evangelical Lutheran Good Samaritan Society; Evangelical Lutheran Good
Samaritan Society d/b/a Good Samaritan Society–Hot Springs Village; Good Samaritan Society
Insurance Co., Ltd.; Corrine White (“White”); and John Does 1 through 5, claiming that
Defendants breached contractual and statutory duties, as well as the duties to exercise ordinary
On December 29, 2011, Evangelical Lutheran Good Samaritan Society and Evangelical
Lutheran Good Samaritan Society d/b/a Good Samaritan Society–Hot Springs Village removed
the case, alleging that the Court has subject mater jurisdiction based on diversity of citizenship
between the parties and an amount in controversy exceeding $75,000. Docket entry #1, Notice
of Removal, ¶ 9. Plaintiff moves for remand, asserting that (1) separate defendants White and
Good Samaritan Society Ins., Ltd. did not join the notice of removal and (2) the removing
defendants have failed to demonstrate diversity of citizenship between the parties.
Rule of Unanimity
“Removal is authorized by 28 U.S.C. § 1441 and governed by § 1446. Where there are
multiple defendants, all must join in a petition to remove within thirty days of service.” Thorn v.
Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir.2002)(citation omitted). However, the
Eighth Circuit has held that each defendant, upon formal service of process, has thirty days in
which to file a notice of removal pursuant to § 1446. See Marano Enterprises of Kansas v.
Z-Teca Restaurants, L.P., 254 F.3d 753, 757 (8th Cir. 2001). Additionally, it is not necessary
that each defendant sign the notice of removal, provided there is “some timely filed written
indication from each served defendant . . . . ” Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th
Here, Plaintiff served White a copy of the complaint and summons on January 3, 2012,
see docket entry #6, Ex. A, and on January 30, 2012, White filed timely notice that she joined the
notice of removal. See docket entry #10. Furthermore, Plaintiff has yet to serve Good Samaritan
Society Insurance, Ltd.,1 and the consent of unserved defendants is not required under § 1446.
See docket entry #6, ¶ 6.
Accordingly, the Court finds that removal in this case does not
contravene the rule of unanimity.
Diversity of Citizenship
Plaintiff further argues that remand is required because Defendants have failed to
demonstrate the domicile of separate defendant White and thus have failed to show that
diversity of citizenship exists between the parties.
Because Defendants removed this case to federal court, they bear the burden of proving
jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy College, 420 F.3d
763, 768 -769 (8th Cir. 2005)(citing Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990)).
In the complaint, Plaintiff identifies Defendant Good Samaritan Society Insurance, Ltd.,
as a foreign corporation with its principal place of business on Grand Cayman, Cayman
Islands. In his motion for remand, Plaintiff alleges that “to his knowledge” Good Samaritan
Society Insurance, Ltd. has not yet been served. See docket entry #6, ¶ 6. Plaintiff states that,
pursuant to Ark. Code Ann. § 23-65-203, he delivered copies of the complaint and summons to
the Arkansas Insurance Commissioner. Plaintiff also states that on December 16, 2011, he
mailed by international registered mail, return receipt requested, a copy of the summons and
complaint to Good Samaritan Society Insurance, Ltd. to the following recipient and address:
Ms. Jennifer Burhardt
Aon Insurance Managers (Cayman)
Post Office Box 69 GT
720 West Bay Road
Grand Cayman, Cayman Islands
Plaintiff further states, “No return receipt was ever received by Plaintiff.” Id.
In the case of a removed action, diversity of citizenship between the parties must exist when the
state complaint is filed and when the notice of removal is filed. See Ryan ex rel. Ryan v.
Schneider Nat. Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001)(citing 28 U.S.C. § 1447(e) and
Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41, 49-50, 15 S. Ct. 751 (1895)). “The
legal standard to determine citizenship is straightforward. Citizenship is determined by a
person’s physical presence in a state along with his intent to remain there indefinitely. Once an
individual has established his state of citizenship, he remains a citizen of that state until he
legally acquires a new state of citizenship.” Altimore, 420 F.3d at 769 (citing Yeldell v. Tutt, 913
F.2d 533, 537 (8th Cir. 1990)).
“A long-established rule states that “[i]t is sufficient to support the jurisdiction of a
federal court that the facts requisite to confer it appear in any part of the record, or are the
necessary consequences of the facts stated in the pleadings or the findings of the court.” Yeldell
v. Tutt, 913 F.2d 533, 538 (8th Cir. 1990)(quoting Myers v. Hettinger, 94 F. 370, 372 (8th Cir.
1899)). Here, neither the complaint filed in state court nor Plaintiff’s motion to dismiss offer any
information regarding the citizenship of any party. However, the notice of removal states that
“upon information and belief” at the time of the commencement of this action, and through the
time of removal, Plaintiff was domiciled in and a citizen of the State of Texas, and White was
not domiciled in Arkansas.2 Further, White’s answer and her written consent to join the notice
Regarding other named defendants, the notice of removal provides that Evangelical
Lutheran Good Samaritan Society is a not-for-profit North Dakota corporation with a principal
place of business and domicile in South Dakota, that “Good Samaritan Society–Hot Springs
Village” is a fictitious business name for Evangelical Lutheran Good Samaritan Society and
should be disregarded, and that Good Samaritan Society Insurance, Ltd. is not domiciled in
Arkansas. See docket entry #1, ¶¶ 3, 4, 6. As noted in the notice of removal, the citizenship of
defendants sued under fictitious names are disregarded in determining whether a civil action is
of removal state that at the time of commencement of this action, and through the time she joined
the notice of removal, she was a citizen of North Dakota and maintained permanent domicile in
North Dakota. Plaintiff does not deny defendants’ averments regarding the citizenship of
Plaintiff and White; he merely argues that defendants have “failed to demonstrate the domicile of
Corrine White.” Docket entry #7, at 8. Considering defendants’ averments in the notice of
removal and White’s answer and written notice joining the notice of removal, the Court finds
that defendants have met their burden to show diversity of citizenship between the parties.
IT IS THEREFORE ORDERED THAT Plaintiff’s motion for remand (docket entry #6 )
IT IS SO ORDERED THIS 30TH DAY OF APRIL, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
properly removed under 28 U.S.C. § 1332(a). See 28 U.S.C. § 1441(b)(1).
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