Stubbs et al v. Allmerica Financial Benefit Insurance Company et al

Filing 9

ORDER that Plaintiffs' motion 8 to remand and for costs, expenses and attorneys' fees is GRANTED. The matter is referred to the Magistrate Judge to determine Plaintiffs' reasonable costs, expenses and attorneys' fees incurred as a result of removal. The case is otherwise REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana. Motion referred to Daniel E. Knowles, III.. Signed by Chief Judge Sarah S. Vance on 6/2/14. (Attachments: # 1 Remand Letter)(NEF: Mag 3)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CHRISTIE STUBBS, et al.

CIVIL ACTION

VERSUS

NO: 14-749

ALLMERICA FINANCIAL BENEFIT
INSURANCE COMPANY, et al.

SECTION: R(3)

ORDER AND REASONS
Plaintiffs Christie Stubbs and Carol Pickney move to remand
and request an award of costs, expenses and attorneys' fees.1 For
the following reasons, the Court GRANTS their motion.
On February 18, 2014, Plaintiffs filed this action in state
court against defendants Allmerica Financial Benefit Insurance
Company ("Allmerica"), Horace Mann Insurance Company ("Horace
Mann") and Encompass Insurance ("Encompass").2 Allmerica and
Horace Mann were served on March 5, 2014.3 Encompass was served
on March 7, 2014.4 On April 2, 2014, Horace Mann removed the suit
to this Court on grounds of diversity jurisdiction.5 Its notice
of removal does not indicate whether Allmerica and Encompass
consent to removal.

1

R. Doc. 8.

2

R. Doc. 1-2 at 1.

3

Id. at 5-6.

4

R. Doc. 8-9.

5

R. Doc. 1.

Plaintiffs now move to remand or, alternatively, to
abstain.6 They argue that Horace Mann's failure to obtain the
consent of its co-defendants is fatal to its removal petition.7
Horace Mann has not filed an opposition to the motion to remand.
Allmerica and Encompass have made no appearance in this action
since Horace Mann removed it to this Court.
"[A]ny civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
may be removed by the defendant or the defendants, to the
district court of the United States for the district and division
embracing the place where such action is pending." 28 U.S.C.
§ 1441(a). When a suit is removed under this statute, "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(b)(2)(A). Failure to obtain the consent of all defendants
who are properly joined and served "renders the [removal]
petition defective." Getty Oil Corp. v. Ins. Co. of N. Am., 841
F.2d 1254, 1262 (5th Cir. 1988). Specifically, "there must be
some timely filed written indication from each served defendant,
or from some person or entity purporting to formally act on its
behalf in this respect and to have authority to do so, that it
has actually consented to such action." Id. at 1262 n.11.

6

R. Doc. 8.

7

R. Doc. 8-1 at 5-7.
2

Here, there is no indication that Allmerica or Encompass
consent to removal. Horace Mann neither stated in its notice of
removal that it had obtained the consent of its co-defendants nor
attached any written confirmation of such consent. Further, it
does not argue that either Allmerica or Encompass is not properly
joined or served in this matter. Accordingly, the Court concludes
that Horace Mann's notice of removal is defective for failure to
obtain the consent of all served defendants. The suit must be
remanded.
Plaintiffs additionally ask the Court for an award of costs,
expenses and attorneys' fees under 28 U.S.C. § 1447(c). This
statute permits "courts [to] award attorney's fees when the
removing party lacks an objectively reasonably basis for
removal." Howard v. St. Germain, 599 F.3d 455, 457 (5th Cir.
2010) (per curiam). "[A]ttorney's fees should be denied if an
objectively reasonable basis exists." Id. "The decision to impose
any fee award . . . is within the court's discretion." Id.
Here, the Court finds that Horace Mann lacked an objectively
reasonable basis for removal. Under long-standing Fifth Circuit
precedent, "all defendants who are properly joined and served
must join in the removal petition, and . . . failure to do so
renders the petition defective." Getty Oil, 841 F.2d at 1262
(citation removed). It is evident that Horace Mann knew that
Allmerica had been served in the state court proceeding, since it

3

attached proof of service on Allmerica to its removal petition.8
Further, it either knew or should have known that Encompass had
been served, since proof of service on Encompass is included in
the state court record.9 Nonetheless, Horace Mann did not obtain,
or at least did not document, its co-defendants' consent, and
neither co-defendant joins in the notice of removal.
Horace Mann makes no arguments in defense of its removal
petition, as it has failed to file any opposition to Plaintiffs'
motion. The Court concludes that Horace Mann's failure to obtain
the consent of its co-defendants renders its basis for removal
objectively unreasonable. An award of "just costs and any actual
expenses, including attorney fees," is warranted under 28 U.S.C.
§ 1447(c).
Accordingly,
IT IS ORDERED that Plaintiffs' motion to remand and for
costs, expenses and attorneys' fees is GRANTED. The matter is
referred to the Magistrate Judge to determine Plaintiffs'
reasonable costs, expenses and attorneys' fees incurred as a
result of removal. The case is otherwise REMANDED to the Civil
District Court for the Parish of Orleans, State of Louisiana.
New Orleans, Louisiana, this ______ day of June, 2014.
2nd
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

8

R. Doc. 1-2 at 6.

9

R. Doc. 8-9.
4