Thomas v. KFC Corporation et al

Filing 17

ORDER and REASONS denying 9 Motion to Remand to State Court, as stated within document. Signed by Judge Kurt D. Engelhardt on 5/15/2018. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRENDA THOMAS

CIVIL ACTION

VERSUS

NO. 18-1264

KFC CORPORATION, et al.

SECTION "N" (4)

ORDER AND REASONS
Given the specific facts presented here, IT IS ORDERED that Plaintiff's motion
to remand (Rec. Doc. 9) is DENIED for essentially the reasons set forth by Defendants in their
memoranda (Rec. Docs. 10 and 13) relative to the timely filing of a written consent of removal. The
Court particularly notes (1) the reference in the February 7, 2018 notice of removal (Rec. Doc. 1,
¶8) to the forthcoming separate written consent of removal;1 (2) that, on the day of removal –
February 7, 2018 at 5:06 p.m. – counsel for Defendant West Quality Food Service, Inc., authorized
(by email) counsel for the removing defendant to "sign the [Consent to Removal] on my behalf and

1

Paragraph 8 of the Notice of Removal states:
The defendant who made a voluntary appearance in the state court
litigation, namely West Quality Food Service, Inc., consents to the
defendants' removal of this action to this Court. (See the unsigned
Consent to Removal filed in connection with these proceedings.
Counsel for West Quality Food Service, Inc., is in the process of
signing the Consent to Removal at the time of this filing and the
original, signed pleading will be filed into the record shortly.

See Rec. Doc. 1 at ¶8.
1

file the Consent to Removal";2 (3) an unsigned written consent was filed by removing counsel along
with the notice of removal (Rec. Doc. 1-1); and (4) a Consent to Removal signed by counsel for
Defendant West Quality Food Service, Inc., was filed the very next day, on February 8, 2018, at 1:50
p.m. See Rec. Doc. 3. Based on these facts, the Court finds the requirement of "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," to have been sufficiently met. See Getty Oil Corp. v. Ins. Co. of North America, et al.,
841 F.2d 1254, 1261, n.11 (5th Cir. 1988).3
New Orleans, Louisiana, this 15th day of May 2018.

_________________________________
KURT D. ENGELHARDT
United States District Judge

2

See Rec. Doc. 10-1, pp. 1-2.

3

Given its focus on a non-lawyer purporting to act on behalf of another non-lawyer,
i.e. a pro se prisoner, which is not permitted in federal court, the Court finds Gonzales v. Wyatt, 157
F.3d 1016, 1021(1998), distinguishable.
2