Bramlett et al v. Bajric et al

Filing 24

ORDER denying 10 Motion to Remand to State Court; denying as moot 20 Motion for Extension of Time. Signed by Judge Thomas W. Thrash, Jr on 9/19/12. (ss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LARRY W. BRAMLETT, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:12-CV-2148-TWT

NEDJAD BAJRIC, et al.,
Defendants.

ORDER

This is an action for personal injuries arising from an automobile accident. The
case was removed from the State Court of Henry County, Georgia, and is before the
Court on the Plaintiffs’ Motion to Remand [Doc. 10] and the Defendants’ Motion for
Extension of Time to Express Formal Consent to Removal [Doc. 20]. For the reasons
set forth below, the Plaintiffs’ Motion to Remand [Doc. 10] is DENIED and the
Defendants’ Motion for Extension of Time to Express Formal Consent to Removal
[Doc. 20] is DENIED as moot.
I. Background
This lawsuit stems from an automobile accident that occurred on March 25,
2011. Plaintiffs Larry and Mary Bramlett were injured in a collision with a tractortrailer driven by Defendant Nedjad Bajric.
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The tractor-trailer was owned by

Defendant Muharem Hrnic, Bajric’s employer. Bajric was operating under a lease
agreement whereby Hrnic leased the trailer and driver to Defendant DSL Express
Trucking, Inc. At the time of the accident, DSL had in effect a liability insurance
policy through Defendant Daily Underwriters of America. (Defs.’ Resp. Br. in Opp.
to Pls.’ Mot. to Remand, at 2).
The Bramletts initiated this suit in the State Court of Henry County, Georgia,
on June 24, 2011. The complaint showed that the parties were diverse but did not
include an allegation of damages. On August 2, 2011, Defendant Bajric filed a
counterclaim against Plaintiff Larry Bramlett. (Defs.’ Not. of Removal, Exs. 1, 4).
The parties commenced discovery in state court. Interrogatory responses filed on
September 12, 2011, disclosed special damages in the amount of $22,847.53. During
his deposition on February 7, 2012, Plaintiff Larry Bramlett testified to lost income
of $28,000 to $30,000 due to his inability to act as a shopping mall Santa Claus. (See
Pls.’ Br. in Supp. of Pls.’ Mot. to Remand, at 4). Mr. Bramlett further testified that
he had invested about half a million dollars in a real estate project, and had hoped to
recover $96,000 of his investment after the deal failed. (Larry Bramlett Dep. at 13841). When asked whether the real estate investment loss was something he sought to
recover in the lawsuit, Bramlett stated it was not and noted that the accident “can’t do
anything about the total economy of the United States.” (Id.) But later in the same

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deposition Bramlett testified the $96,000 was something he was hoping to recover in
this lawsuit. (See id.) During Plaintiff Mary Bramlett’s deposition, also taken on
February 7, 2012, Mrs. Bramlett twice stated she did not know if she was seeking
above $75,000 in the lawsuit and testified she did not know the exact amount of
damages she was seeking. (See Mary Bramlett Dep. at 112, 121). The Defendants
contend that the Plaintiffs consistently stated in discovery responses that they did not
have enough information to establish damages. (Defs.’ Resp. Br. in Opp. to Pls.’ Mot.
to Remand, at 12).
On June 20, 2012, the Plaintiffs made a demand upon the Defendants for a $1
million settlement. The next day, the Defendants filed a Notice of Removal to this
Court. Although the Notice of Removal stated that “[a]ll served Defendants consent
to removal of this action,” the notice was only signed by Kenneth Shigley, the
attorney for Defendant and Plaintiff in Counterclaim Bajric. Attorneys Brent Michael
Estes and Grant Butler Smith are on record as representing all four Defendants,
including Bajric, but they did not sign the notice. The Defendants submitted the
Notice of Removal to the state court on July 6, 2012. (See Pls.’ Br. in Supp. of Pls.’
Mot. to Remand, at 8). On July 9, 2012, Shigley, Estes, and Smith (as well as the
Plaintiffs’ attorneys) all signed the Proposed Consent Order to Extend Time for
Plaintiffs to Respond to Defendants’ Motion for Partial Summary Judgment, which

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referenced the removal. (Prop. Cons. Order, at 2-3). The Court received no further
indications of consent to removal from the non-signing Defendants prior to their
responses to the Plaintiffs’ Motion to Remand, which was filed on July 23, 2012.
II. Legal Standard
A defendant may remove an action from state court to federal court so long as
the federal court would have originally had federal question or diversity jurisdiction.
28 U.S.C. § 1441(a). If the basis for federal jurisdiction is diversity of citizenship, the
case goes back to state court if: (1) there is not complete diversity between the parties,
Strawbridge v. Curtiss, 3 Cranch 267 (1806); (2) the amount in controversy does not
exceed $75,000, 28 U.S.C. § 1332(a)(1); or (3) one of the defendants is a citizen of
the state in which the suit was filed, 28 U.S.C. § 1441(b); see also 28 U.S.C. §
1447(b). To successfully remove an action, the defendant must file its notice of
removal within thirty days after the defendant receives the complaint or summons.
28 U.S.C. § 1446(b)(1). If a case is not initially removable, a defendant may file a
notice of removal within thirty days after receipt of “an amended pleading, motion,
order or other paper from which it may first be ascertained that the case is one which
is or has become removable.” 28 U. S. C. § 1446(b)(3). Additionally, removal is
only proper if each defendant consents. 28 U. S. C. § 1446 (b)(2)(A); Cook v.

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Randolph County, 573 F.3d 1143, 1150 (11th Cir. 2009).1 “In a motion to remand,
the removing party bears the burden of showing the existence of federal jurisdiction.”
Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Removal
statutes are to be interpreted narrowly with any doubts construed against removal
jurisdiction. See Williams v. AFC Enter., Inc., 389 F.3d 1185, 1189 (11th Cir. 2004);
Burns v. Windsor Ins., 31 F.3d 1092, 1095 (11th Cir. 1994).
III. Discussion
The Plaintiffs offer four alternative grounds for remand, all resting on defects
in the removal procedure, not on federal jurisdiction itself. First, the Plaintiffs
contend that the petition was untimely because the Defendants filed the Notice of
Removal several months after they should have ascertained an amount in controversy
exceeding $75,000 from the depositions of the Plaintiffs on February 7, 2012. (Pls.’

1

The Federal Courts Venue Clarification Act of 2011 did not alter the Eleventh
Circuit requirement that all defendants express their consent to the court. See Nichols
v. Healthsouth Corp., No. 2:12-cv-00823-SLB, 2012 U.S. Dist. LEXIS 128031, at *67 (N.D. Ala. Sep. 10, 2012) (citing Cook v. Randolph County, Ga., 573 F.3d 1143,
1150 (11th Cir. 2009) and Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040,
1050 (11th Cir. 2001)); see also Crowley v. Amica Mut. Ins. Co., No. 12-775, 2012
U.S. Dist. LEXIS 127216, at *6-7 n.2 (E.D. La. Sep. 7, 2012) (“Although § 1446(b),
as revised by [The Venue Clarification Act], does not state that all of the defendants
must consent to removal in writing, the Court finds no indication that the Fifth
Circuit's requirement of written consent is inconsistent with or displaced by the
statutory change. Indeed, Congress's codification of the unanimity rule signals the
importance of ensuring that all of the defendants have consented to removal.”).
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Mem. of Law in Supp. of Pls.’ Mot. to Remand, at 4). Second, the Plaintiffs argue
that the removal was filed by the wrong party, Defendant and Plaintiff in
Counterclaim, Nedjad Bajric, who could not remove the case in his capacity as
Plaintiff in Counterclaim. (Id. at 5). Third, the Plaintiffs argue that the removal was
not joined, signed, and consented to by all Defendants. (Id. at 5-6). And fourth, the
Plaintiffs argue the removal was invalid because the Defendants did not timely file the
Notice of Removal with the State Court of Henry County. (Id. at 8).
A.

The Notice of Removal was Timely

The Plaintiffs assert the Notice of Removal was not timely because the
Defendants could have ascertained the amount in controversy following the February
7, 2012, depositions. The Defendants contend that they could not ascertain the
amount in controversy from the February depositions and that the first trigger for the
30-day removal deadline was when the Defendants received the $1 million demand
letter.
The Court finds that the Defendants could not have ascertained with sufficient
certainty the amount in controversy prior to their receipt of the Plaintiffs’ demand
letter.

The Plaintiffs’ discovery responses before sending the letter were not

sufficiently certain and were often ambiguous. The interrogatory responses provided
lost wages and medical expenses well below the $75,000 threshold. The deposition

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testimony from both Plaintiffs frustrated any certainty with respect to damages.
Plaintiff Larry Bramlett identified $28,000 - $30,000 in lost wages but stated that the
$96,000 he hoped to recover from a failed real estate deal was unrelated to the lawsuit,
and then later stated he was seeking the $96,000 in this suit. Plaintiff Mary Bramlett
twice refused to state with certainty that her damages would amount to more than
$75,000. These responses did not allow the Defendants to ascertain that the amount
in controversy exceeded $75,000. The first time the Defendants were able to firmly
determine damages was on June 20, 2012, when they received the demand letter from
the Plaintiffs, and the Defendants filed a Notice of Removal the next day. The
Defendants’ immediate removal following receipt of the letter bolsters this Court’s
determination that prior discovery was insufficient to ascertain an unambiguous
damage figure. Therefore, the Notice of Removal was timely.
B.

The Notice of Removal was Filed by a Proper Party

The Plaintiffs argue that Bajric did not have the capacity to remove the case
given his status as a Plaintiff in Counterclaim. The Defendants counter that Bajric,
as a named Defendant in the state court lawsuit, had the authority to initiate the
removal process. The Court holds that Bajric, as a Defendant, was entitled to file the
Notice of Removal despite his status as both a Defendant and a Plaintiff in
Counterclaim. The Plaintiffs have offered no cases to support their theory that a

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defendant who is also a plaintiff in counterclaim cannot remove the case to federal
court.

The Court is similarly unable to find any cases where a plaintiff in

counterclaim was barred from removing the case but has located cases where the
defendant/plaintiff in counterclaim removed the case without issue. See, e.g.,
Fleming, Ingram & Floyd, P.C. v. Clarendon Nat’l Ins. Co., No. CV 108-075, 2009
U.S. Dist. LEXIS 120784, at *2 (S.D. Ga. Nov. 29, 2009) (noting without comment
that the Defendants/Plaintiffs in Counterclaim had removed the action to federal
court). Therefore, the Notice of Removal was filed by a proper party.
C.

The Defendants Adequately Consented to Removal

The Plaintiffs argue that the failure of the other attorneys for three of the four
Defendants to sign the Notice of Removal was a fatal defect in the removal process.
The Defendants argue that all Defendants consent to removal, that the notice was the
collaborative work product of the attorneys representing all Defendants, and that the
lack of signatures was merely a mistake.
While the Eleventh Circuit has recently expressed leniency with respect to
procedural inadequacies in the removal process, it has not confronted a lack of
signature by some defense attorneys. In Cook v. Randolph County, 573 F.3d 1143,
1150 (11th Cir. 2009), the plaintiff argued that removal was procedurally improper
because the notice of removal did not show that all defendants consented to the

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removal. The court agreed that “removal is proper only if all of the defendants
consent,” but noted that the circuit has “never required that every defendant
individually sign the notice of removal in order to establish unanimous consent.” Id.
at 1150 (citing Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir.
2008)). The court noted that the first sentence of the notice of removal stated that
“[a]ll defendants, by counsel, hereby file a Notice of Removal,” and then noted that
the notice was signed by the attorney for all the defendants. Id. The court concluded
that “[n]o one contends that any of the defendants did not want the case removed.
Absent some basis for believing that, the representation of the attorney for the
defendants that all of her clients consented to removal is enough.” Id. at 1151.
Similarly, in Corporate Management Advisors, Inc. v. Artjen Complexus, Inc.,
561 F.3d 1294, 1298 (11th Cir. 2009), the Eleventh Circuit reversed a district court’s
sua sponte remand for lack of subject matter jurisdiction because the notice of removal
did not state the parties’ citizenship. The court concluded that the failure to allege
citizenship in the notice of removal was a procedural rather than a jurisdictional
defect. Id. at 1296. The court defined a procedural defect as “any defect that does not
go to the question of whether the case originally could have been brought in federal
district court.” Id. at 1297 (quoting In re Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir.
1993)) (internal quotation marks omitted). The court held that “where subject matter

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jurisdiction exists and any procedural shortcomings may be cured by resort to [28
U.S.C. § 1653], we can surmise no valid reason for the court to decline the exercise
of jurisdiction.” Id. (quoting In re Allstate, 8 F.3d at 223).2 Because § 1653 allows
for amendment of defective allegations of jurisdiction, the court reversed the district
court’s remand, and directed the district court to allow the defendants to amend their
notice of removal. Id. at 1297-98.3
The Eighth Circuit confronted similar facts to the instant case in Christiansen
v. West Branch Cmty. Sch. Dist., 674 F.3d 927 (8th Cir. 2012). The district court had
denied a motion to remand holding that the defendants who did not sign the notice of
removal adequately expressed their consent to removal by filing a motion to dismiss
within the 30-day period following the initial service of the complaint. Id. at 932.
The court noted that, “[w]here there are multiple defendants, all must join in a notice

2

The Court notes that the Alabama district court cases where procedural errors
in the removal process have led to remands do not bind this Court. See Nam v. U.S.
Xpress, Inc., No, 1:10-cv-3924-AT, 2011 U.S. Dist. LEXIS 45292, at *12 (N.D. Ga.,
Apr. 27, 2011).
3

Additionally, the Eleventh Circuit has endorsed a retreat from an formalistic
approach to the removal statute. In Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d
1202, 1207 (11th Cir. 2008), the court applied the last-served defendant rule with
respect to the 30-day removal deadline despite the strict language of the statute. The
court supported its decision by noting that the Supreme Court’s decision in Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), signaled a retreat
from a strict constructionist approach to the removal statute. Id. (citing Murphy Bros.,
526 U.S. at 347-48, 357).
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to remove within thirty days of service.” Id. (quoting Thorn v. Amalgamated Transit
Union, 305 F.3d 826, 833 (8th Cir. 2002)) (internal marks omitted). The court
recognized a circuit split “regarding how a non-removing co-defendant must express
consent to removal.” Id. (citing 16 Georgene Vairo, Moore’s Federal Practice - Civil
§ 107.11[1][c] (3d ed. 2011)). In the Eighth Circuit, the court held, “it is not
necessary for all defendants to actually sign the notice of removal so long as there is
some timely filed written indication from each served defendant that the defendant has
actually consented to the removal.” Id. (quoting Pritchett v. Cottrell, Inc., 512 F.3d
1057, 1062 (8th Cir. 2008)) (internal quotation marks omitted). Recognizing that
“this is a very close case,” the court held that the filing of the motion to dismiss and
accompanying brief -- which expressed that removal was appropriate -- within the 30
day time limit sufficed to show unanimous consent. Id. at 933. The court explicitly
limited its holding to the facts of the case and emphasized “that non-removing
defendants who wish to evince consent to removal should either sign the notice of
removal or file a timely and unequivocal consent to such course of conduct.” Id.
The First Circuit made a similar holding in Samaan v. St. Joseph Hosp., 670
F.3d 21 (1st Cir. 2012). Reviewing its precedent, the court noted that “an apparent
lack of unanimity could be remedied by a non-signing defendant’s timely opposition
to a motion to remand.” Id. at 28 (citing Esposito v. Home Depot U.S.A., Inc., 590

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F.3d 72 (1st Cir. 2009)). The court concluded that the non-signing defendant’s filing
of an answer in federal court coupled with its opposition to the motion to remand
sufficiently showed unanimity, and the court upheld the district court’s denial of the
motion to remand. Id.
Here, the Court finds that there are sufficient indications that all Defendants
consented to removal. The Notice of Removal included a statement that “all
Defendants consent to removal.” The Notice was signed by the attorney for one of
four Defendants, but the non-signing attorneys share representation of all Defendants.
The attorneys for the Defendants collaborated in drafting the notice. All Defendants
have opposed the motion to remand. The Defendants have also moved the Court to
allow them to express formal consent. Additionally, the attorneys for all Defendants
signed the Proposed Consent Order to Extend Time for Plaintiffs to Respond to
Defendants’ Motion for Summary Judgment, which referenced the removal and noted
that the state court response deadline was not the same as the federal deadline. The
proposed order was filed on July 9, 2012, within 30 days of the Defendants’
ascertaining federal jurisdiction via the Plaintiffs’ demand letter.4 Further, the lack

4

Although this was outside the 1-year period for removal, the Court finds that
the expression of consent to the Notice of Removal was timely because the Notice of
Removal itself was filed within the 1-year deadline and the proposed order was filed
within 30 days of the Defendants’ ascertaining the amount in controversy. See 28
U.S.C. § 1446(c)(1).
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of signatures is a procedural defect because it is unrelated “to the question of whether
the case originally could have been brought in federal district court.” See Corporate
Management Advisors, 561 F.3d at 1297; see also 14C Charles Alan Wright, Arthur
R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3733 (2009) (“the
failure to provide the Federal Civil Rule 11 signature [is] curable in federal court.”).
As the Eleventh Circuit noted in Cook, when, as here, “no one contends that any of
the defendants did not want the case to be removed,” and the defect at issue is a
procedural one, then the case should not be remanded. The Court concludes that
through their Notice of Removal and subsequent filings the Defendants sufficiently
expressed their consent to removal within the statutory time period.
D.

The Defendants Timely Filed the Notice of Removal with the State Court

The Plaintiffs also argued that removal was improper because the Defendants
did not file the Notice of Removal with the Henry County State Court within the 30day removal period. The Defendants contend that a short delay in submitting the
notice to the state court is not a fatal defect. The Court agrees with the Defendants
and notes that the Defendants’ fifteen-day delay in filing the notice of removal with
the state court is a procedural defect that does not warrant remand. See Corporate
Management Advisors, 561 F.3d at 1297 (suggesting that district courts should not
remand for procedural defects in the removal process); Rito Ligutom v. SunTrust

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Mortgage, No. C10-05431 HRL, 2011 U.S. Dist. LEXIS 14196, at *6 (N.D. Cal. Feb.
4, 2011) (concluding that defendant’s one-month delay in filing the notice of remand
to the state court did not warrant remand); Nixon v. Wheatley, 368 F. Supp. 2d 635,
640 (E.D. Tex. 2005) (concluding that 22-day delay in submitting notice to state court
was not fatal).
IV. Conclusion
For the reasons set for above, the Plaintiffs’ Motion to Remand [Doc. 10] is
DENIED and the Defendants’ Motion for Extension of Time to Express Formal
Consent to Removal [Doc. 20] is DENIED as moot.
SO ORDERED, this 19 day of September, 2012.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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