Colletti v. Bendix et al
Filing
16
ORDER AND REASONS denying 4 Motion to Remand to State Court. Signed by Judge Ivan L.R. Lemelle on 2/25/2016. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID W. COLLETTI
CIVIL ACTION
VERSUS
NO. 16-308
BENDIX, ET AL.
SECTION "B"(3)
ORDER AND REASONS
Before the Court is David Colletti’s (hereinafter “Plaintiff”
or “Colletti”) “Emergency Motion to Remand.” Rec. Doc. 4. Defendant
Honeywell
International,
Inc.
(hereinafter
“Honeywell”
or
“Defendant”) filed a memorandum in opposition. Rec. Doc. 9. For
the reasons outlined below,
IT IS ORDERED that the Motion is DENIED.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Plaintiff’s alleged exposure to
asbestos. Plaintiff, a citizen of Mississippi, originally filed
suit in Civil District Court for the Parish of Orleans, State of
Louisiana,
naming
the
following
entities
as
defendants:
(1)
Asbestos Corporation Ltd. (“Asbestos”), a Canadian corporation
with its principal place of business in Quebec, Canada; (2)
Burmaster Land & Development Co., LLC (“Burmaster”), a Louisiana
citizen; (3) Metropolitan Life Insurance Company (“Metropolitan”),
a New York corporation with its principal place of business in New
York; (4) Honeywell, a Delaware corporation with its principal
place of business in New Jersey; and FCA US, LLC (“FCA”), a citizen
1
of Delaware and/or Michigan.1 Rec. Doc. 1 at 1-2. Accordingly,
complete diversity of citizenship exists with only one defendant,
Burmaster, a resident of the forum state.
After obtaining a copy of the original state court petition
on January 7, 2016,2
Honeywell filed a notice of removal in this
Court on January 13, 2016. Rec. Doc. 1 at 3. Unbeknownst to counsel
for Honeywell at the time of removal, Honeywell’s registered agent
in Louisiana, Corporation Service Company (“CSC”), was personally
served with process on January 12, 2016. Rec. Docs. 7, 7-1. No
other defendants in this case had been served with process at the
time of removal. Rec. Docs. 1, 4 at 2. Honeywell removed on the
basis of diversity jurisdiction, claiming that removal was not
barred by the forum-defendant rule under 28 U.S.C. § 1441(b)(2)
because the forum-resident defendant (Burmaster) had not yet been
served. Plaintiff thereafter filed the present Motion to Remand on
January 14, 2016. Rec. Doc. 4.
II.
THE PARTIES’ CONTENTIONS
First, Colletti maintains that Honeywell was not permitted to
remove the action under the forum-defendant rule because Burmaster
The citizenship of these entities is based upon information provided in the
Notice of Removal (Rec. Doc. 1) and information from the Louisiana Secretary of
State’s business filings database. While the citizenship of an LCC is determined
by the citizenship of its members, and thus not readily ascertainable from the
Secretary of State’s website, Plaintiff concedes that the parties are completely
diverse and that only Burmaster is a citizen of Louisiana. See Rec. Doc. 4-1 at
1-2.
2 Though the Notice of Removal says January 7, 2014, Honeywell later corrected
its mistake in a subsequent filing. Rec. Doc. 7 at 1-2.
1
2
is a resident of the forum state. Rec. Doc. 4-1 at 3. Second, he
claims that Honeywell “jumped the gun” by removing the case before
being served, making removal altogether improper. Rec. Doc. 4-1 at
4.
Finally, Colletti asks this Court to award him costs and
attorney’s fees upon remand to state court. Rec. Doc. 4-1 at 5-6.
Honeywell maintains that it properly removed this matter in
all respects. First, Honeywell claims that removal is not barred
by the forum-defendant rule because the forum-defendant was not
yet served when the Notice of Removal was filed. Second, Honeywell
contends that service was effectuated on its registered agent prior
to removal. Nevertheless, Honeywell argues that service of process
on the removing party is not a prerequisite to removal. Finally,
even if the case is remanded, Honeywell claims that costs and
attorney’s fees are not proper.
III. LAW AND ANALYSIS
A defendant may remove a civil action from state court to the
federal district court encompassing the place where the action is
pending so long as the case falls under the district court’s
original
jurisdiction.
jurisdiction
exists
28
when
U.S.C.
there
is
§
1441(a).
diversity
Such
of
original
citizenship,
meaning the suit is between citizens of different states and the
amount in controversy exceeds $75,000. 28 U.S.C. § 1332. However,
an action that is otherwise removable based on diversity “may not
be removed if any of the parties in interest properly joined and
3
served as defendants is a citizen of the State in which such action
is brought.” 28 U.S.C. § 1441(b)(2). Plaintiff’s first argument is
that this forum-defendant rule bars removal.
a. Whether the Forum-Defendant Rule Bars Removal
Here, the original petition was filed in Louisiana state court
and one of the defendants, Burmaster, is a Louisiana citizen.
Accordingly,
prevents
Plaintiff
Honeywell’s
argues
removal,
that
the
mandating
forum-defendant
remand
back
to
rule
state
court. Honeywell cites a number of cases out of this district as
well as the plain language of the statute to support the argument
that the forum-defendant rule only bars removal in this situation
if the forum-defendant has been served at the time of removal. As
Burmaster had not yet been served when Honeywell removed the
action, Defendant contends that there is no bar to removal.
The forum-defendant rule specifically precludes removal “if
any of the parties in interest properly joined and served as
defendant is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b)(2) (emphasis added). Though joined
in the original action, it is undisputed that Colletti had not yet
served Burmaster at the time of removal. See Rec. Doc. 4-1 at 3.
Based on the plain meaning of the statute then, Honeywell’s removal
of this matter does not violate the forum-defendant rule. While
acknowledging that Honeywell’s position has “garnered some support
in other courts,” Plaintiff maintains that this Court should ignore
4
the “and served” language of the statute. Rec. Doc. 4-1 at 3-4.
This the Court cannot do. “Following the plain language of section
1441(b), courts have virtually uniformly held that, where complete
diversity exists between the parties, the presence of an unserved
resident
defendant
does
not
prevent
removal.”
Stewart
v.
Auguillard Constr. Co., Inc., No. 09-6455, 2009 WL 5175217, at *3
(E.D. La. Dec. 18, 2009); Ott v. Consol. Freightways Corp. of
Delaware, 213 F. Supp. 2d 662, 665 (S.D. Miss. 2002) (noting that
“courts have held, virtually uniformly, that where, as here,
diversity does exist between the parties, an unserved resident
defendant may be ignored in determining removability under 28
U.S.C. §1441(b).”). Here, it is undisputed that Burmaster was not
served prior to removal and that complete diversity exists as all
defendants
reside
in
different
states
than
the
Plaintiff.
Accordingly, the forum-defendant rule does not bar removal.
b. Whether Honeywell was Served Prior to Removal
Plaintiff’s second argument is that, even if the forumdefendant rule was not violated, removal here was procedurally
deficient because Honeywell filed the notice of removal before
being served. Section 1446 places additional restrictions on the
process of removal. Relevant here is § 1446(b), which provides:
“The notice of removal of a civil action or proceeding shall be
filed within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting
5
forth the claim for relief upon which such action or proceeding is
based.” 28 U.S.C. § 1446(b) (emphasis added). Honeywell maintains
that its registered agent in Louisiana was served prior to removal,
but, in any event, that service upon the removing party is not a
prerequisite to removal.
In the Notice of Removal, Honeywell admits that it originally
obtained a copy of the state court petition from its attorneys on
December 7, 2016. Rec. Doc. 1 at 3. Honeywell goes on to state in
the Notice of Removal that “[u]pon information and belief, at the
time this Notice of Removal is filed, no defendant to this lawsuit
has been served with process.” Rec. Doc. 1 at 4. The next day,
Colletti filed the present motion for remand. Rec. Doc. 4. On
January 20, 2016, Honeywell filed a supplement to its Notice of
Removal. Rec. Doc. 7. There, Honeywell contended that at the time
of removal, it had no indication that service had been effectuated.
“However,
after
filing
the
Notice
of
Removal[,]
Honeywell
discovered that it had actually been served in Louisiana, via longarm service through Corporate Service Co., in Baton Rouge, on
January 12, 2016—the day before Honeywell filed its Notice of
Removal.” Rec. Doc. 7 at 1. In support of this assertion, Honeywell
provides the Court with the “Notice of Service of Process” it
received from CSC, which indicates that CSC was personally served
with process on January 12, 2016 as the registered agent for
Honeywell. Rec. Doc. 7-1. Accordingly, Honeywell now maintains
6
that, though unaware at the time the Notice of Removal was filed,
it had actually been served with process at the time of removal.
Plaintiff has submitted no further briefing on this issue other
than the original motion, which was filed before Honeywell found
out about service on CSC.
The term “service of process” is defined by state law, meaning
that Louisiana law governs whether Honeywell was properly served
on
January
12
as
alleged.
City
of
Clarksdale
v.
Bell
South
Telecommunications., Inc., 428 F.3d 206, 210 (5th Cir. 2005). “In
Louisiana, service of process on a domestic or foreign corporation
is made by personal service on any one of its agents for service
of process.” Pellerin-Mayfield v. Goodwill Industries, No. 033774, 2003 WL 21474649, at *1 (E.D. La. June 20, 2003) (citing LA.
CODE
CIV.
P.
arts
1261(A),
1232).
Honeywell
is
a
Delaware
Corporation and its Louisiana business filings list CSC as its
registered agent. Therefore, personal service on CSC is sufficient
to meet the Louisiana standard for service of process.
As service was apparently effectuated on Honeywell on January
12, 2016 via personal service on its registered agent CSC, this
Court
need
not
address
Honeywell’s
alternative
argument
that
service is not a prerequisite to removal. As far as this Court can
tell, service occurred on January 12, 2016 and removal occurred on
January 13, 2016, meaning removal occurred well within the thirty
7
(30)
day
time
limit
prescribed
by
28
U.S.C.
§
1446(b)(1).
Therefore, removal was procedurally proper in all respects.
IV.
CONCLUSION
Honeywell avoided all potential procedural pitfalls by filing
the Notice of Removal after being served yet before Colletti served
the forum-defendant, Burmaster. For the aforementioned reasons,
IT IS ORDERED that the Motion to Remand is DENIED.
New Orleans, Louisiana, this 25th day of February, 2016.
____________________________
UNITED STATES DISTRICT JUDGE
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?