Charlesworth et al v. Averitt Express Inc et al

Filing 7

ORDER denying 5 Motion to Remand to State Court as set forth in document. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DEBRA CHARLESWORTH

CIVIL ACTION

VERSUS

NO: 14–1668

AVERITT EXPRESS, INC., ET AL

SECTION: "H"(5)

ORDER
Before the Court is Plaintiffs' Motion to Remand (Doc. 5). Plaintiffs filed
this case in Louisiana state court on August 2, 2013 asserting several state law
claims against five defendants. Plaintiffs are citizens of Arkansas and the
original defendants were citizens of Alabama, Delaware, Tennessee, and
Louisiana. Two of the defendants were Louisiana citizens. One was voluntarily
dismissed on November 27, 2013 and the other was dismissed on June 27, 2014.
The remaining Defendants removed the suit to this court on July 21, 2014.
Plaintiffs now move to remand, arguing that the removal is untimely and that
Defendants waived their right to remove by litigating this case in state court.
Generally, a defendant may remove a civil state court action to federal
court if the federal court has original jurisdiction over the action.1 The burden
is on the removing party to show "[t]hat federal jurisdiction exists and that
removal was proper."2 Plaintiffs concede that the Court has subject matter
jurisdiction over this case.
1

28 U.S.C. § 1441(a).

2

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

1

28 U.S.C. § 1446(b)(1) requires that a notice of removal generally be filed
within 30 days after the removing defendant is served with the suit. However,
"if the case stated by the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant . . . of a copy of an . .
. order . . . from which it may first be ascertained that the case is one which is
or has become removable."3 Plaintiffs argue that this case was always removable
because complete diversity existed at the time suit was filed.

The Court

disagrees.
Plaintiffs' argument overlooks the so-called "forum defendant rule"
contained in 28 U.S.C § 1441(b)(2). According to 28 U.S.C § 1441(b)(2), "A civil
action otherwise removable solely on the basis of [diversity jurisdiction] may not
be removed if any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought." Because
two of the initial defendants were Louisiana citizens, this suit did not become
removable until June 27, 2014, the date that the last Louisiana citizen was
dismissed.4 Defendants removed the case less than 30 days later, and less than
one year after the action was instituted,5 therefore the removal was timely.
Plaintiffs also argue that Defendants waived their right to remove this suit
because they litigated it in state court despite the fact that it was removable.
This argument is also rejected. This case was not removable until the last
Louisiana defendant was dismissed. Therefore, Defendants' participation in the
litigation prior to that dismissal did not waive their right to remove.
3

28 U.S.C. § 1446(b)(3).

4

See Mumfrey v. Anco Insulations, Inc., No. 11–2284, 2011 WL 4745626, at *2 (E.D. La.
Oct. 7, 2011) (citing Weems v. Louis Dreyfus Corp., 380 F.2d 545 (5th Cir.1967 ) ("if a resident
defendant is dismissed from a case by the voluntary act of the plaintiff, the case becomes
removable").
5

See 28 U.S.C. § 1446(c)(1) (providing that an action removed on the basis of diversity
cannot be removed more than one year following the institution of the action).

2

Accordingly,
IT IS ORDERED that Plaintiffs' Motion to Remand is DENIED.
New Orleans, Louisiana, on this 19th day of November, 2014.

______________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

3