Tircuit v. National Liability and Fire Insurance Company et al
Filing
18
ORDER & REASONS denying 5 Motion to Remand to State Court. Signed by Judge Martin L.C. Feldman on 11/20/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JESSICA TIRCUIT
CIVIL ACTION
VERSUS
NO. 12-2423
NATIONAL LIABILITY AND
FIRE INSURANCE COMPANY ET AL.
SECTION “F”
ORDER AND REASONS
Before the Court is the plaintiff’s motion to remand to
state court.
For the reasons that follow, the motion is DENIED.
Background
This dispute arises out of a car accident and the alleged
personal injuries that resulted from it.
On September 14, 2011, Jessica Tircuit was driving west on
Religious Street in New Orleans, when a tractor-truck and trailer
operated by Isayevich Khalil allegedly moved from the right lane
to the left lane hitting Ms. Tircuit’s vehicle near the
intersection of Religious and Race Streets.
Ms. Tircuit filed
suit on August 23, 2012, in the Civil District Court for the
Parish of Orleans, naming as defendants Mr. Khalil; his employer,
LGS Logistics, Inc.; his employer’s insurer, National Liability
and Fire Insurance Company; and State Farm Automobile Insurance
Company, which provided uninsured/underinsured motorist coverage
to Ms. Tircuit.
1
Service was made through the Louisiana Secretary of State on
both National Liability and State Farm on September 11, 2012.
LGS Logistics was also served under the Louisiana Longarm Statute
on September 13, 2012.
Mr. Khalil contends that he was never
served in this case, and on September 21, 2012, along with
National Liability, Mr. Khalil filed an Exceptions and Answer
pleadings in state court.1
Pursuant to 28 U.S.C. § 1332, Mr. Khalil and National
Liability removed the case to this Court on the basis of
diversity of citizenship on October 2, 2012.
Ms. Tircuit now
moves the Court to remand the case to state court, alleging that
co-defendants LGS Logistics and State Farm did not join in or
consent to removal, therefore making removal procedurally
defective.
Legal Standards
I.
Federal courts are courts of limited jurisdiction.
Howery
v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citing
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)).
A defendant may remove a civil action filed in state
court if a federal court would have had original jurisdiction.
See 28 U.S.C. § 1441(a) (2006).
A district court has original
1
In the state court pleadings, Mr. Khalil excepts to the
original petition because of insufficiency of citation and
service of process.
2
jurisdiction in a case in which the amount in controversy exceeds
$75,000, and the parties are citizens of different states.
28 U.S.C. § 1332.
See
The plaintiff does not dispute that the amount
in controversy exceeds $75,000 or that the parties are completely
diverse here.2
Although the plaintiff challenges removal in this case, the
removing defendants carry the burden of showing the propriety of
this Court's removal jurisdiction.
See Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see
also Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.
1993).
Remand is proper if at any time the Court lacks subject
matter jurisdiction.
28 U.S.C. § 1447.
Any ambiguities are
resolved in favor of remand, Butler v. Polk, 592 F.2d 1293, 1296
(5th Cir. 1979), as the removal statute should be strictly
construed.
Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278
(5th Cir. 2007); see also Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100 (1941).
II.
2
In her memorandum in support of this motion to remand, Ms.
Tircuit concedes that the amount in controversy is over $75,000.
Moreover, Ms. Tircuit is a resident of Louisiana and Mr. Khalil
is a resident of Colorado. National Liability is incorporated
and maintains its principal place of business in Nebraska, LGS
Logistics is incorporated and maintains its principle place of
business in Illinois, and State Farm is incorporated and
maintains its principal place of business in Illinois.
3
Under 28 U.S.C. § 1446(b)(3), the removal of a case is
timely if filed “within 30 days after receipt by the defendant,
through service or otherwise, of a copy 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.”
In cases involving multiple defendants, the Fifth Circuit
has adhered to the first-served defendant rule, under which all
defendants need to join in the removal within thirty days of the
date that the first defendant was served.
Getty Oil Corp. v.
Ins. Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir. 1988).
Congress, however, recently passed amendments to section 1446
that took effect in January 2012, which adopted the last-served
rule.1
Section 1446(b) now mandates that each defendant has “30
days after receipt by or service on that defendant of the initial
pleading or summons . . . to file the notice of removal.”
28
U.S.C. § 1446(b)(2)(B).
Congress also codified the “rule of unanimity” in revising
section 1446.
See, e.g., Penson Fin. Servs., Inc. v. Golden
Summit Investors Grp., Ltd., No. 12-300, 2012 WL 2680667, at *5
(N.D. Tex. July 5, 2012) (citing H.R. Rep. No. 112-10, at 13
(2011)).
Section 1446(b)(2)(A) states that “[w]hen a civil
1
The Federal Courts Jurisdiction and Venue Clarification Act
took effect on January 6, 2012. Act of Dec. 7, 2011, Pub. L. No.
112-63; 125 Stat. 758.
4
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 to federal court.”
To demonstrate
defendants’ unanimous consent to removal, the Fifth Circuit
requires that each served defendant provide “some timely filed
written indication” of consent.
Getty Oil Corp., 841 F.2d at
1262 n.11; see also Crowley v. Amica Mut. Ins. Co., No. 12-775,
2012 WL 3901629 (E.D. La. Sept. 7, 2012) (noting that the recent
amendments to the removal statutes do not affect the Fifth
Circuit requirement of written consent by all defendants).
I.
Discussion
Plaintiff contends that defendants’ removal was procedurally
defective because co-defendants LGS Logistics and State Farm
failed to join in or consent to removal in violation of the rule
of unanimity.
Moreover, plaintiff alleges that this defect
requires remand notwithstanding the fact that both co-defendants
later entered written notices of consent into the record.
The
Court cannot agree.
A notice of removal must generally be filed within thirty
days after service on a defendant.
See 28 U.S.C. § 1446(b)(1).
The thirty-day time period, however, is only triggered if the
plaintiff’s pleading “affirmatively reveals on its face that the
plaintiff is seeking damages in excess of the minimum
jurisdictional amount of the federal court.”
5
Chapman v.
Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992); see also
Krantz v. Pep Boys-Manny, Moe, & Jack, Inc., No. 08-1011, 2008 WL
2906513, at *1-2 (E.D. La. July 24, 2008).
Therefore, under
section 1446(b)(3), the thirty-day time period begins once a
defendant receives, through service or otherwise, an “amended
pleading, motion, order or other paper from which it may be first
ascertained that the case is one which is or has become
removable.”
28 U.S.C. § 1446(b)(3).
Here, Ms. Tircuit’s original petition is consistent with
state law and does not indicate a specific amount of monetary
damages.2
In response, Mr. Khalil and National Liability served
Ms. Tircuit with a request for admission, asking whether Tircuit
allegedly sustained or could sustain in the future damages less
than $75,000.
On October 2, 2012, counsel for Mr. Khalil and
National Liability called Ms. Tircuit’s attorney to discuss the
outstanding request for admission and received oral confirmation
that damages would not be less than $75,000.
On the same day,
October 2, 2012, Mr. Khalil and National Liability filed a notice
of removal.
Two days later on October 4, 2012, Ms. Tircuit
denied the admission stating “[p]laintiff does not stipulate to
recovering less than [$75,000] the amount [defendants] specify.”
2
Under Article 893(A)(1) of the Louisiana Code of Civil
Procedure, “[n]o specific monetary amount of damages shall be
included in the allegation or prayer of any original, amended or
incidental demand.” LA. CODE CIV. PROC. ANN. art. 893(A)(1) (2011).
6
Response to written discovery is considered an “other paper”
under section 1446(b)(3) and, therefore, the thirty-day period
for removal in this case commenced on October 2, 2012.
See,
e.g., Jupiter v. Lowe’s Home Ctrs., Inc., No. 12-895, 2012 WL
2878639 (E.D. La. July 13, 2012) (noting that response to written
discovery was the “other paper” that triggered the thirty-day
period for removal under section 1446(b)(3)); Kimmons v. Racetrac
Petroleum, Inc., No. 11-2901, 2012 WL 476222 (E.D. La. Feb 13,
2012) (same); McDaniel v. Home Depot U.S.A., Inc., No. 07-5575,
2007 WL 4144956 (W.D. La. Nov. 20, 2007) (holding that a doctor’s
report discussing plaintiff’s injuries was “other paper”
sufficient to start the thirty-day clock).
Plaintiff contends that the unanimity rule was violated
because LGS Logistics and State Farm did not join in or consent
to removal.
Plaintiff, however, overlooks the fact that it is
not necessary for each of the defendants to sign the original
notice of removal.
See Goldman v. Nationwide Mut. Ins. Co., No.
11-1414, 2011 WL 3268853, at *2 (E.D. La. July 28, 2011) (“In
order for all the defendants to ‘consent’ to the removal, it is
not necessary for each of them to sign the original notice of
removal . . . .”).
Rather, “there must be some timely filed
written indication from each served defendant . . . that it has
actually consented” to removal.
Getty Oil Corp., 841 F.2d at
1262 n.11; see also Goldman, 2011 WL 3268853, at *2.
7
Because LGS
Logistics and State Farm filed written consents into the record
on October 30, 2012 (well within the thirty-day period that
started on October 2, 2012) all defendants in this case have
joined in or consented to removal.
Moreover, plaintiff’s reliance on Crowley v. Amica Mutual
Insurance Company is misplaced.
In Crowley, Amica Mutual
Insurance Company removed the case and included in its notice of
removal that “State Farm has consented,” because Amica had
previously received oral consent by telephone from State Farm.
2012 WL 3901629, at *1.
The thirty-day period for filing began
at the end of February 2012, and State Farm documented its
written consent with affidavits on May 29, 2012, well after the
conclusion of the thirty-day time period.
Id. at *4.
The court
in Crowley held that oral representations committed to writing by
co-defendants were insufficient to constitute written consent by
all defendants.
Id.
Moreover, the court noted that the later
filed affidavits “did not cure this defect” because the consents
were filed after the thirty-day time frame.
Id.
Notably, and
dispositive in this case, LGS Logistics and State Farm “cured”
the potential unanimity defect by filing written consents into
the record within the thirty-day time period.
Accordingly, remand is improper here and the plaintiff’s
motion is DENIED.
8
New Orleans, Louisiana, November 20, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
9
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