Ross v. USA Football, Inc. et al

Filing 6

ORDER AND REASONS granting 3 Motion to Remand to State Court. Signed by Judge Martin L.C. Feldman on 2/22/2017. (Attachments: # 1 Remand Letter) (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GIZELLE ROSS, AS ADMINISTRATRIX
OF THE MINOR CHILD, JAHIRES JAMES

CIVIL ACTION

V.

NO. 17-139

USA FOOTBALL, INC., ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff’s motion to remand. For the
following reasons, the motion is GRANTED.
Background
This personal injury lawsuit involves a minor child.
Jahires James, a child, attended a football camp sponsored by
USA Football, Inc. One of the coaches at the camp allegedly parked
his personal vehicle near one of the end zones of the football
field used at the camp. While participating in the camp, the
plaintiff attempted to catch a pass and ran into the vehicle that
one of the coaches had allegedly negligently parked.
The child’s mother, Gizelle Ross, sued the vehicle’s owner,
whose name is still unknown but whom the plaintiff speculates is
likely a Louisiana domiciliary, and the vehicle owner’s insurer.
Additionally, the plaintiff named USA Football, Inc., the owner of
the

football

camp

program,

and

its

insurer,

Chubb

National

Insurance Company, as defendants.
The minor suffered cervical and lumbar spine sprain and full
disability, as well as lacerations to his arms. The plaintiff seeks
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damages for past, present, and future medical and medication
expenses, past, present and future pain and suffering, psychiatric
and psychological damage and emotional distress.
USA
lawsuit

Football,
to

this

Inc.

Court

removed
based

on

the

plaintiff’s

diversity

state

court

jurisdiction.

The

plaintiff now moves the Court to remand the lawsuit to state court,
contending that Chubb did not consent to removal as required under
28 U.S.C. § 1446(b)(2)(A).
I.
A defendant may remove an action from state court to federal
court, provided the action is one in which the federal court may
exercise original jurisdiction. 28 U.S.C. § 1441(a); Manguno v.
Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002).

The

removing

defendant

bears

the

burden

of

ensuring

compliance with the procedural requirements of removal. Manguno,
276 F.3d at 723. The removal statutes are strictly construed in
favor of remand. Id.
The Fifth Circuit has long held that all properly joined and
served defendants must join in the notice of removal or otherwise
consent to removal within the 30 day period set forth in 28 U.S.C.
§ 1446(b). Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co.
of North America, 841 F.2d 1254, 1262 (5th Cir. 1988); Brown v.
Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986); Davis v. City of
Shreveport Police Dept., No. 12-0918, 2012 WL 4189511, *2 (W.D.
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La. Sept. 18, 2012). While each defendant need not sign the notice
of removal, 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 the authority to do so, that it has actually consented to
such action.” Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir.
2002). While some circuits dispute when the 30-day period for
consent begins to run in cases involving multiple defendants, the
Fifth Circuit has made it clear that all served defendants must
join in or consent to removal within thirty days after the first
defendant is served. Getty Oil, 841 F.2d at 1263. “Failure to
comply with the thirty-day time limitation or with the unanimity
requirement renders the removal procedurally defective.” Jones v.
Scogin, 929 F. Supp. 987, 988 (W.D. La. 1996).
II.
The issue before the Court is whether Chubb’s consent to
removal, given to USA Football within 30 days of USA Football being
served, but filed into the record more than 30 days after its
service, is defective. Aside from establishing that the 30-day
time frame runs from when the first defendant is served, the Fifth
Circuit also makes it clear that the removing defendant must do
more than merely state that another served defendant consents to
removal in its notice of removal filed in federal court. Getty
Oil, 841 F.2d at 1262, n. 11; Jones, 929 F. Supp. at 988; Thompson
3

v. Louisville Ladder Corp., 835 F. Supp. 336, 337, n. 3 (E.D. Tex.
1993).
Here, USA Football was served with the plaintiff’s state court
petition on or about December 13, 2016; Chubb National Insurance
Company was served on December 21, 2016. USA Football filed its
notice of removal in this Court on January 6, 2017. In its notice
of

removal,

USA

Football

states

that

Chubb

consented

to

the

removal; however, USA Football did not enter any written consent
into the record reflecting Chubb’s consent to removal with its
Notice of Removal. 1
On January 18, 2017, the plaintiff filed this motion to remand
on the basis that not all served defendants consented to removal.
In response, USA Football filed an opposition on January 24, 2017;
attached to the opposition was an affidavit from Kathleen Mulucci,
counsel for Chubb. While counsel declared that Chubb consented to
removal on December 29, 2017, within 30 days of USA Football’s
service of process, the affidavit was dated January 20, 2017 and
filed into the record on January 24, 2017. The dates of the sworn
testimony asserting consent and the document entered into the
record confirming the same were both more than 30 days after USA
Football’s initial service on December 13, 2017.

1

At the time of filing its notice of removal, the remaining two
defendants still had not been served. USA Football was not required
to express whether the unserved defendants consented to removal.
4

III.
Accordingly, the record did not indicate written consent from
a served defendant within 30 days of the first defendant’s service
of process. The defendants failed to properly effect removal of a
state court lawsuit to this Court.
IT IS ORDERED that the plaintiff’s motion to remand is GRANTED
and the case is REMANDED to the 24th Judicial District for the
Parish of Jefferson, State of Louisiana.

New Orleans, Louisiana, February 22, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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