International Three Crown Petroleum LLC et al v. Petromed Corporation et al

Filing 22

ORDER REMANDING CASE to the District Court, City and County of Denver, State of Colorado, from which the case was removed. by Chief Judge Wiley Y. Daniel on 2/18/2010. (erv, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel Civil Action No. 10-cv-00317-WYD INTERNATIONAL THREE CROWN PETROLEUM LLC; and ISRAEL PETROLEUM COMPANY, Plaintiffs, v. PETROMED CORPORATION; HAGAI AMIR; LYLE DURHAM; EAST MEDITERRANEAN EXPLORATION COMPANY LIMITED; and DAVID PEACE, Defendants. ORDER OF REMAND THIS MATTER came before the Court for hearing on the PetroMed Defendants' Notice of Removal, filed February 15, 2010 [#1], this Court's Order to Show Cause, issued February 17, 2010 [#7], the PetroMed Defendants' Response to Court's Order to Show Cause, filed February 17, 2010 [#14], Defendant East Mediterranean Exploration Company, Ltd. ("East Med") and David Peace's Response and Objection to Defendants' PetroMed Corporation, Amir, and Durham's Notice of Removal, filed February 17, 2010 [#15], and Plaintiffs' Response to Removal Issues, filed February 18, 2010 [#17]. On February 15, 2010, Defendants PetroMed Corporation, Hagai Amir, and Lyle Durham (the "PetroMed Defendants") filed a Notice of Removal of this case from the District Court for the City and County of Denver. The PetroMed Defendants asserted

that removal is proper pursuant to 28 U.S.C. §§ 1446 and 1332(a). Soon after the Notice was filed, Plaintiffs International Three Crown Petroleum LLC and Israel Petroleum Company filed a renewed motion for a temporary restraining order. I issued an Order to Show Cause stating my concerns with the Notice of Removal and setting this matter for hearing to address potential defects in the Notice and, if appropriate, to hear Plaintiffs' request for TRO. As noted in my Order to Show Cause, there is a presumption against removal jurisdiction, Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995), and courts are rigorously to enforce Congress' intent to restrict federal jurisdiction in controversies between citizens of different states. Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1339 (10th Cir. 1998). "As judicially interpreted, § 1446(b) requires all served defendants, except nominal defendants, to join or consent to the removal petition within thirty days of service, commencing when the first defendant is served." Scheall v. Ingram, 930 F. Supp 1448, 1449 (D. Colo. 1996) (citation omitted). "A petition filed by less than all the named defendants is considered defective if it fails to contain an explanation for the absence of co-defendants." Id. (citation omitted). In this case, the Notice failed to state whether the East Med Defendants consented to the removal, whether they had been served, or whether their consent is not required. In addition, I questioned whether the Notice adequately set forth the jurisdictional amount in controversy. Defendant PetroMed filed a Response to the Order to Show Cause explaining why the amount in controversy is satisfied in this case, and stating that none of the Defendants in this case, including the East Med Defendants. PetroMed maintained that
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because the East Med Defendants have not yet been served, their consent to the removal is not yet required. That same day, the East Med Defendants filed a response stating that they "hereby object to Defendants PetroMed, Amir, and Durham's request for removal." At the hearing on the Order to Show Cause, Plaintiffs affirmed that they are seeking to have all Defendants served, but maintained that because service had not yet occurred, it was not necessary that all Defendants consent to the removal and jurisdiction was proper. The East Med Defendants reaffirmed that, upon service, it was their intent to refuse to consent to the removal.1 During the course of the hearing, Plaintiff stated that it would withdraw any objection to the removal, and consent to the remand. I find that the Notice of Removal is defective on its face pursuant to 28 U.S.C. § 1446(c) because it was filed by less than all the named defendants and did not include an explanation for the absence of co-defendants East Mediterranean Exploration Company, Ltd. and David Peace. See Scheall v. Ingram, 930 F. Supp 1448, 1449 (D. Colo. 1996). In addition, I find that the East Med Defendants have stated in written pleadings signed by their counsel that they object to the removal. Moreover, Plaintiffs have consented to remand of the case to Denver District Court. Therefore, it is hereby ORDERED that the Clerk of Court is directed to REMAND this action to the District Court, City and County of Denver, State of Colorado, from which the case was removed.

The East Med Defendants attempted to reverse this position after Plaintiffs agreed that they would consent to remand of the case, but eventually the East Med Defendants affirmed that they did, in fact, object to the removal.
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Dated: February 18, 2010 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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