Reaves et al v. Transport Corporation of America Inc et al
OPINION AND ORDER denying the 5 motion to remand. Signed by Judge J. Leon Holmes on 8/4/2016. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ALTHA REAVES, Personal Representative
of the Estate of Willetta Reaves and
next of friend of Grace Bizzell, a minor;
and MAYONNA BIZZELL
No. 4:16CV376 JLH
TRANSPORT CORPORATION OF
AMERICA, INC.; and JIMMIE MARTIN
“MARTY” HARPER, JR.
OPINION AND ORDER
Altha Reaves, personal representative of the Estate of Willetta Reaves and next friend of
Grace Bizzell, a minor, and Mayonna Bizzell brought this action in the Circuit Court of Pulaski
County, Arkansas against Transport Corporation of America, Inc., and Jimmie Martin “Marty”
Harper, Jr. The suit arises out of a collision between a tractor-trailer, owned by Transport
Corporation of America, and driven by Harper, with a vehicle driven by Willetta Reaves. The
tractor-trailer rear-ended Willetta Reaves’ car and she died as a result. Transport Corporation of
America removed the case to this Court based on diversity jurisdiction. 28 U.S.C. § 1332. The
parties do not dispute that complete diversity exists and that the amount in controversy meets the
requirements.1 However, Reaves and Bizzell have filed a motion to remand arguing that Harper has
not joined the motion to remove and Transport Corporation of America should have stated why
Harper did not join in the motion to remove. Although Harper was not served, Reaves and Bizzell
The notice of removal does not address the citizenship of Altha Reaves, Grace Bizzell, or
Mayonna Bizzell. Instead the notice of removal and attached complaint state that Willetta Reaves,
the deceased, was a resident of Arkansas. All parties appear to assume that Grace Bizzell and
Mayonna Bizzell were residents of Arkansas, like their mother. Transport Corporation of America
is based in Minnesota and is neither incorporated nor has its principal place of business in Arkansas.
Harper is a citizen and resident of the State of Alabama. For the purposes of this order, complete
diversity exists. The plaintiffs seek actual damages not to exceed $20,000,000.00, which is more
argue that failure to state why Harper did not join the motion requires the case to be remanded. For
the following reasons the motion to remand is denied.
A case may be removed from state court to federal court under 28 U.S.C. § 1441(a) where
the district courts of the United States have original jurisdiction. The defendant desiring to remove
the action must file a notice of removal “containing a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and orders.” 28 U.S.C. § 1446(a). “When
a civil action is removed solely under section 1441(a), 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(2)(A).
Transport Corporation of America filed a notice of removal and Harper did not join.
Document #5-1. The notice of removal does not state the reason why Harper did not join in removal.
Where several defendants are jointly sued in a state court, the suit cannot be removed to federal court
unless all the defendants join the removal. Wright v. Missouri Pac. R. Co., 98 F.2d 34, 35 (8th Cir.
1938). The general rule is “that a non-resident defendant, although he is charged jointly with other
defendants, need not be joined in removal if he has not been served with summons.” Id. at 35-36.
The plaintiffs argue that although this is true, Transport Corporation of America must state that
Harper did not join the removal because he was not served and without this statement the case must
In Wright v. Missouri Pac. R. Co. the plaintiff presented evidence to the district court that
the non-joining defendant actually had been served and the failure to file the return of service was
inadvertent. 98 F.2d at 36. The court remanded the case because it “conclud[ed] that the record
before the district court was insufficient to sustain the federal jurisdiction.” Id. It also stated:
The situation before us has come about partly because the plaintiff’s attorney has
kept the alleged summons and return without filing it, and partly because the railroad
company and the trustee failed to allege in the petition for removal the ground on
which they claimed the joinder of Stacey Edwards to be unnecessary.
Id. The Eighth Circuit did not remand the case because the defendant failed to explain it believed
the other defendant had not been served, the case was remanded because evidence was presented that
the other defendant had been served.
In McMahan v. Fontenot the nonremoving defendant was served the summons on the same
day that the removing defendant was served, but the removing defendant did not disclose why the
other defendant did not join the petition. 212 F. Supp. 812, 814 (W.D. Ark. Jan. 10, 1963). The
court held that the case must be remanded because the nonremoving defendant was served and the
motion to remove could not be amended. Id. at 814-15. Likewise, in Heckleman v. Yellow Cab
Transit Co., the court held that “[t]he petition to remove is fatally defective in that it failed to include
any reason for not including [the nonremoving defendant] and the record discloses no such reason.”
45 F. Supp. 984, 985 (E.D. Ill. Aug. 11, 1942). The nonremoving defendant was served two days
before the removing defendant filed its petition. Id. at 985. All of the non-joining defendants in
these cases were actually served.
In this case, the petition to remove does not contain a reason why Harper did not join the
petition. However, unlike the other cases, the parties do not dispute that Harper was not served. The
record before this Court is sufficient to uphold federal jurisdiction because Harper was not served.
For the foregoing reasons, the motion to remand is DENIED. Document #5.
IT IS SO ORDERED this 4th day of August, 2016.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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