Holden v. Serco Inc. et al

Filing 26

ORDER AND REASONS: IT IS HEREBY ORDERED that Plaintiff's 6 Motion to Remand is DENIED. Signed by Judge Wendy B Vitter on 1/11/2022. (jeg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AKEM HOLDEN

CIVIL ACTION

VERSUS

NO. 21-1661

SERCO INC., ET AL

SECTION D (2)
ORDER AND REASONS

Before the Court is Plaintiff Akem Holden’s Motion to Remand. 1 Defendants
John C. Tedder-Hairfield (“Hairfield”), Serco, Inc. (“Serco”) and ACE American
Insurance Company (“Chubb”) have filed an Opposition. 2 Plaintiff has filed a Reply.3
After careful consideration of the parties’ briefs, the record, and the applicable law,
the Court DENIES the Motion.
I.

FACTUAL BACKGROUND
This action arises out of a vehicular accident that occurred on January 8, 2020

when Plaintiff, Akem Holden, rear-ended a parked 2016 Ford F250 truck owned by
Defendant Serco. 4 The Serco truck was stopped in the left lane of I-10 eastbound on
the “Twin Span” bridge, between New Orleans East and Slidell, in response to a 911
call regarding construction debris blocking the road-way in that lane, specifically, a
construction ladder. 5 The driver of the Serco truck, Defendant John Tedder-Hairfield,
purportedly turned on the vehicle’s emergency lights as well as an amber sign board

R. Doc. 6.
R. Doc. 10.
3 R. Doc. 14.
4 R. Doc. 1-1.
5 Id.
1
2

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to alert other drivers to switch lanes and avoid the parked truck. 6 Plaintiff claims he
was unable to avoid the Serco vehicle because its lights were not on. He rear-ended
the truck at 69 miles per hour. 7
Plaintiff filed this lawsuit in state court on October 19, 2020 naming three
defendants: (1) Serco, Inc.; (2) Ace American Insurance Company; and (3) driver John
Tedder-Hairfield. 8 He served two Defendants, Serco and Chubb, 9 who filed their
responsive pleading in state court on January 26, 2021. 10 The civil sheriff was unable
to serve Defendant Tedder-Hairfield, a non-resident. On June 25, 2021, Plaintiff’s
counsel sent a letter to the Clerk of Court explaining that Tedder-Hairfield was
unable to be served via private process server and requested that the court re-issue
the citation via the Louisiana Long Arm Statute. 11 According to an Affidavit filed by
Plaintiff, Plaintiff effected service on Tedder-Hairfield under the Louisiana Long Arm
Statute on July 20, 2021. 12 Service was delivered to Tedder-Hairfield on August 4,
2021. 13 Subsequently, Hurricane Ida reached Louisiana on August 29, 2021,
prompting an Eastern District of Louisiana court order interrupting filing
deadlines. 14 Tedder-Hairfield filed a Notice of Removal on September 7, 2021 and the
case was removed to federal court. 15

Id.
Id.
8 Id. Defendant Tedder-Hairfield was erroneously identified as Tedder-Haimfield in the state court
pleadings.
9 Id.
10 Id.
11 R. Doc. 6-5.
12 R. Doc. 6-6.
13 Id.
14 USDC-EDLA General Order No. 21-12 (2021).
15 R. Doc. 1.
6
7

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Plaintiff has filed a Motion to Remand. 16 Plaintiff argues that Defendant.
Tedder-Hairfield’s removal was improper because he failed to file his Notice of
Removal within the thirty-day time limit mandated by 28 U.S.C. § 1446(b)(3). 17
Plaintiff asserts that Tedder-Hairfield was served on July 20, 2021 upon mailing of
the citation and complaint, and thus the thirty day time limit to file a Notice of
Removal expired on August 19, 2021. 18 Plaintiff notes that Tedder-Hairfield did not
file his Notice of Removal until September 7, 2021. 19 Plaintiff also argues that this
Court’s General Order 21-12 improperly suspended and extended all filing deadlines
following Hurricane Ida. 20
Defendants have filed a joint Response. 21 Defendants argue that service is not
effected upon the mere mailing of the citation and complaint to a party, but rather
when the citation and complaint are actually received by the party. 22 Accordingly,
Defendants argue that the thirty-day time limit to remove the case did not start until
Defendant Tedder-Hairfield received a copy of the citation and complaint, which
occurred on August 4, 2021. 23 Defendants further contend that this Court’s General
Order 21-12 properly suspended and extended all filing deadlines in the wake of
Hurricane Ida for thirty days beginning on August 26, 2021. 24 Thus, defendants

R. Doc. 6.
Id.
18 Id.
19 Id.
20 Id.
21 R. Doc. 10.
22 Id.
23 Id.
24 Id.
16
17

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assert that Tedder-Hairfield’s Notice of Removal was timely filed on September 7,
2021. 25
Plaintiff has filed a Reply. 26 Plaintiff initially disputes defendants’ reading of
controlling Supreme Court jurisprudence, Murphy Brothers, Inc. v. Michetti Pipe
Stringing, Inc., regarding when service is effected. 27 Further, Plaintiff asserts that
removal was untimely because General Order 21-12 was inapplicable because the
Eastern District of Louisiana’s clerk’s office was not inaccessible as required by
Federal Rule of Civil Procedure 6(a). 28 Plaintiff further argues that the Eastern
District of Louisiana lacks the authority to promulgate a General Order that
contradicts a filing deadline established by federal law. 29
II.

LEGAL STANDARD
A. Removal
A defendant may remove “any civil action brought in a State court of which the

district courts of the United States have original jurisdiction.” 30 When original
jurisdiction is based on diversity of citizenship, the cause of action must be between
“citizens of different states” and the amount in controversy must exceed the “sum or
value of $75,000, exclusive of interest and costs.” 31 “When a civil action is removed
solely under section 1441(a), all defendants who have been properly joined and served

Id.
R. Doc. 14.
27 Id.; see Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
28 Id.
29 Id.
30 28 U.S.C. § 1441(a).
31 28 U.S.C. § 1332(a)-(a)(1).
25
26

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must join in or consent to the removal of the action to federal court.” 32 The removal
statute is strictly construed and any doubt as to the propriety of removal should be
resolved in favor of remand. 33 The removing party has the burden of proving federal
diversity jurisdiction. 34 Remand is proper if at any time the court lacks subject matter
jurisdiction. 35
B. Timeliness of Removal
“A 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 forth the claim for relief upon which such action or proceeding is
based…” 36 However, “if the case stated by the initial pleading is not removable, a
notice of removal may be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is one which is or has
become removable.” 37
III.

ANALYSIS

Plaintiff and Defendants agree there is complete diversity and that the amount
in controversy exceeds the sum of $75,000. 38 Therefore, the Court limits its analysis
to whether Defendant Tedder-Hairfield’s Notice of Removal was timely filed.

28 U.S.C. § 1446(b)(2)(A).
Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
34 Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003).
35 See 28 U.S.C. § 1447(c).
36 28 U.S.C. § 1446(b)(1).
37 28 U.S.C. § 1446(b)(3).
38 Plaintiff is a Louisiana resident. Defendant Serco is a Virginia corporation with its principal place
of business in Virginia. Defendant Chubb is a Pennsylvania company with its principal place of
32
33

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A. Service under the Louisiana Long Arm Statute
The Federal Rules of Civil Procedure provide that individuals within a judicial
district of the United States may be served process by delivery pursuant to the state
law where the district court sits. 39 The Louisiana Long–Arm Statute provides that a
certified copy of the citation and complaint “shall be sent by counsel for the plaintiff,
or by the plaintiff if not represented by counsel, to the defendant by registered or
certified mail, or actually delivered to the defendant by commercial courier, when the
person to be served is located outside of this state.” 40
“Under the clear wording of [the Louisiana Long–Arm Statute], all that is
necessary to constitute service upon a non-resident ... is that counsel for plaintiff send
a certified copy of the citation and of the petition in the suit to the defendant by
registered certified mail ... There is ... no requirement for a signed return receipt.” 41
“[W]hen the plaintiff's counsel sends a copy of the citation and petition to the
defendant by registered mail, such service has the same legal force and validity as
person service made on the defendant within the state.” 42
In the present case, Plaintiff and Defendant dispute when precisely service
was effected. Plaintiff argues that service was effected as soon as the certified copy of

business in Pennsylvania. Defendant Tedder-Hairfield is a Tennessee resident. Old American County
Mutual Fire Insurance Company, named as a Defendant by Serco and Chubb in their Reconventional
Demand, is a Missouri corporation with its principal place of business in Missouri.
39 Fed. R. Civ. Proc. 4(e)(1).
40 La.Rev.Stat. § 13:3204(A).
41 Thomas Organ Co v. Universal Music Co., 261 So.2d 323, 327 (La.Ct.App.1972).
42 McFarland v. Dippel, 1999–0584, p. 5 (La.App. 1 Cir. 3/31/00); 756 So.2d 618, 622.

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the citation and complaint were mailed to the Defendant. 43 Conversely, Defendant
argues that service was not effected until the Defendant received a copy of the
certified citation and complaint in the mail. 44
Here, Louisiana law clearly states that service is effected upon the mailing of
a certified copy of the citation and complaint to the defendant. In Matt v. Culpepper,
this Court held that the plaintiff effected service on the defendant under the
Louisiana Long–Arm statute when the plaintiff sent a certified copy of the citation
and complaint via certified mail to the defendant’s address. 45 The court explained
that “the long-arm statute does not require proof of receipt by signature when service
is made via certified or registered USPS mail and there is no doubt as to the
correctness of the address.” 46 Similarly, in James v. Progressive Specialty Ins. Co.,
this Court held that “to satisfy the Louisiana long-arm statute, plaintiffs need only
send a certified copy of the summons and complaint to a non-resident defendant by
registered or certified mail; there is no requirement for a signed return receipt or
actual physical service.” 47
Louisiana state courts have likewise followed suit. “[A]ll that is necessary to
constitute service upon a non-resident under the long-arm statute is that counsel for
the plaintiff send a certified copy of the citation and of the petition in the suit to the
R. Doc. 6.
R. Doc. 10.
45 No. 14-1464, 2014 WL 5816930, at *2–3 (E.D. La. Nov. 7, 2014).
46 Id.
47 No. 19-2288, 2019 WL 6728343, at *1 (E.D.LA. Dec. 11, 2019) (citing Major v. Patriot Disaster Servs.
LLC, 2017 WL 457656, at *3-4 (M.D. La. Feb. 2, 2017)) (holding that plaintiffs’ certified mailing of
process to address for defendant provided by defense counsel fulfilled the requirements of Louisiana's
long-arm statute).
43
44

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defendant by registered or certified mail, or actually deliver it in person.” 48 In another
case, a Louisiana court found that the plaintiff's attorney had mailed certified copies
of the citation and the complaint by certified mail to the defendant and there was no
indication that plaintiff's attorney had sent it to the wrong address. 49 The court thus
held service was proper and personal jurisdiction was established because
defendant's non-receipt of the citation did not determine the issue of personal
jurisdiction. 50
Accordingly, in keeping with the law of this district as well as Louisiana,
service was effected on Defendant as soon as Plaintiff mailed a certified copy of the
citation and complaint by certified mail to the Defendant. Here, service occurred on
July 20, 2021 when Plaintiff mailed a certified copy of the citation and complaint by
certified mail to Defendant Tedder-Hairfield. 51
B. Timeliness of Removal
Having determined the date of service, the Court must next evaluate when the
time to file a Notice of Removal begins to accrue.
28 U.S.C. § 1446(b)(1) states that the Notice of Removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant, through

McFarland v. Dippel, 756 So. 2d 618, 622 (La. App. 1st Cir. 2000).
HTS, Inc. v. Seahawk Oil & Gas, Inc., 2004–892, p. 3 (La.App. 3 Cir. 12/8/04); 889 So.2d 442, 444–
45.
50 Id.
51 R. Doc. 6.
48
49

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service or otherwise, of a copy of the initial pleading setting forth the claim for relief
upon which such action or proceeding is based. 52
Both Plaintiff and Defendant rely on the U.S. Supreme Court’s decision in
Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. to establish the date when the
removal deadline begins. Defendant relies on Murphy Brothers for the proposition
that the defendant must receive a copy of the petition and summons before the thirtyday time limit to remove a case under 28 U.S.C. § 1446(b) begins and that mere
service of the petition by mail is inadequate to start that time limit. 53
Plaintiff disagrees with Defendant’s reading of Murphy Brothers and states
that simultaneous service of the summons or complaint can start the removal
deadline. 54 Plaintiff argues that in Murphy Brothers, the Supreme Court explained
that the date of service starts the deadline to remove, in this case when the Plaintiff
mailed a certified copy of the petition and summons by certified mail to the
Defendant. 55
The Court is persuaded that the Defendant’s reading of Murphy Brothers is
proper. The Court in Murphy Brothers emphasized access to the complaint, whether
through receipt of service or other means (such as if the complaint has been filed into
the record) and its importance in providing defendants “adequate time to decide
whether to remove an action to federal court.” 56 The Court explained that Congress
28 U.S.C. § 1446(b)(1).
R. Doc. 10 (citing 526 U.S. 344, 347-48 (1999)).
54 R. Doc. 6.
55 R. Doc. 14.
56 526 U.S. 344 at 354.
52
53

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enacted the current version of 28 U.S.C. § 1446(b) “to ensure that the defendant would
have access to the complaint before commencement of the removal period.” 57
In keeping with this ruling, courts apply the “receipt rule” to determine when
the time requirement to file a Notice of Removal begins. The “receipt rule” states that
the thirty-day period for removing a state court action begins to run when the
defendant actually receives the plaintiff’s petition, rather than on the date when the
agent of service is served. 58 Other district courts in Louisiana have issued similar
rulings in keeping with the “receipt rule.” Courts in the Middle and Western Districts
of Louisiana have held that a defendant must actually receive a copy of the initial
pleading to trigger the 30-day period to remove an action where service is made on a
statutory agent under state law. 59
Here, Defendant Tedder-Hairfield did not receive a copy of the citation and the
complaint until August 4, 2021. 60 Accordingly, under the “receipt rule,” the thirtyday time period for Tedder-Hairfield to file a Notice of Removal began on that same

Id. at 351-52.
Hibernia Community Development Corp., Inc. v. U.S.E. Community Services Group, Inc., 166 F.
Supp. 2d 511 (E.D. La. 2001) (finding that the thirty-day period for removing a state court action began
to run when insurer actually received plaintiffs' petition, rather than on date on which state's secretary
of state, as insurer's statutory agent, was served); see also McKnight v. Illinois Cent. R.R., 967 F. Supp.
182 (E.D. La. 1997) (stating that the thirty-day period for removing cases to federal court begins when
defendant receives copy of initial pleading through any means, not just service of process).
59 See, e.g., First Choice Surgery Ctr. of Baton Rouge, LLC v. United Healthcare Servs., Inc., No. 120065, 2012 WL 3109483, at *3 (M.D. La. July 30, 2012) (notice of removal was timely filed based on
defendant’s actual receipt of initial petition from Louisiana Secretary of State); see also Brown v. S.L.
Netterville Logging, Inc., No. 09-200, 2009 WL 1875755, at *3 (M.D. La. June 26, 2009) (“Several
district courts in the Fifth Circuit have . . . concluded that the time for removal commences when the
defendant actually receives formal process, as opposed to when service is made on the Secretary of
State as the defendant’s statutory agent.”); see also Manuel v. Unum Life Ins. Co. of Am., 932 F.Supp.
784 (W.D. La.1996) (holding that the “thirty day period in which defendant can remove commences on
defendant's actual receipt of a copy of the pleading”).
60 See R. Doc. 10.
57
58

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day. Thus, the Notice of Removal was required to be filed by September 3, 2021.
Defendant’s Notice of Removal was filed on September 7, 2021.
C. General Order 21-12
Hurricane Ida made landfall in Louisiana on August 29, 2021. On September
4, 2021, Chief Judge Nannette Brown issued General Order 21-12, suspending all
deadlines and delays, including prescriptive and peremptive periods, for a period of
thirty days commencing from August 26, 2021. 61
Relying on a footnote in a factually dissimilar case which states that “[n]either
state nor federal courts can extend the statutory period of time within which cases
may be removed to federal court,” 62 Plaintiff argues that the district court lacks the
authority to suspend or delay filing deadlines created in accordance with federal law,
in this case 28 U.S.C. § 1446(b). 63 Plaintiff further claims that the Eastern District of
Louisiana clerk’s office was accessible at all times and that counsel for Defendant was
capable of filing its Notice of Removal remotely or from its Lafayette office. 64
Defendant counters that Federal Rule of Civil Procedure 6 authorizes federal
courts to suspend deadlines when the clerk’s office is inaccessible, as was the case
following Hurricane Ida as well as during past hurricanes, including Hurricane
Katrina and Hurricane Rita. 65 Defendant notes that its office, located in downtown

USDC-EDLA General Order No. 21-12 (2021).
Wawrzycki v. Bales, No. 19-12278, 2019 WL 4894557 (E.D. La. October 4, 2019).
63 R. Doc. 6.
64 R. Doc. 14.
65 R. Doc. 10.
61
62

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New Orleans, was closed in the wake of Hurricane Ida and that it filed its Notice of
Removal on the first possible day following the hurricane. 66
Federal Rule of Civil Procedure 6(a)(3)(A) allows for an extension of time to
file, if the clerk’s office is inaccessible, until “the first accessible day that is not a
Saturday, Sunday, or legal holiday.” 67 The filer must file on the first day following
the inaccessibility. 68 Effective August 26, 2021, this Court suspended all filing
deadlines for a period of thirty days (from August 26 through September 27, 2021) by
General Order 21-12 issued by Chief Judge Brown. 69 That Order provided, “All
deadlines and delays, including prescriptive and preemptive periods, in cases pending
or to be filed in this Court are hereby suspended for thirty (30) days commencing from
August 26, 2021.” 70 The Order included that “the Court finds that the federal
courthouse and the office of the Clerk of Court, were/are not meaningfully accessible
within the meaning of Federal Rule of Civil Procedure 6(a) and Federal Rule of
Appellate Procedure 26(a) for the period of time beginning on August 26, 2021 and
continuing for thirty (30) days thereafter.” 71
This Court has previously upheld General Order 21-12. In Pursley v. Lawrence,
this Court cited General Order 21-12 and determined that it suspended a defendant’s
one year time limit to file a Notice of Removal based on diversity under 28 U.S.C. §

Id.
Fed. R. Civ. P. 6(a)(3)(A).
68 Id.
69 USDC-EDLA General Order No. 21-12 (2021).
70 Id.
71 Id.
66
67

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1446(c)(1). 72 The district court in Pursley relied on the “near-identical language in a
general order issued . . . in the wake of Hurricane Katrina.” 73 In Brown v. City of New
Orleans, following both Hurricanes Katrina and Rita, the court considered an order
issued by Chief Judge Helen G. Berrigan which suspended all deadlines and delays,
including liberative prescription and peremptive periods in cases pending or to be
filed in the Eastern District of Louisiana. 74 The Court held that Judge Berrigan’s
order suspending deadlines was applicable and Plaintiff’s late-filed petition was thus
timely. 75
Similar court closures and suspensions of filing deadlines were also enacted in
Louisiana state courts. On August 26, 2021, the Governor of Louisiana instituted a
State of Emergency due to the impending Hurricane Ida. 76 Following that initial
Proclamation, on September 6, 2021, Governor Edwards signed an additional
Executive Order, Proclamation 170 JBE 2021, which provided, “Legal deadlines
applicable to legal proceedings in all courts, administrative agencies, and boards, are
hereby suspended until September 24, 2021… Unless otherwise provided in this
order, these provisions are effective from Thursday, August 26, 2021 to Friday,
September 24, 2021.” 77

No. 21-1776, 2021 WL 5231871 at *4 (E.D. La. Nov. 10, 2021).
Id.
74 No. 16-17080, 2007 WL 2480984 (E.D. La. Aug. 30, 2007).
75 Id.
76 Louisiana Proclamation No. 165 JBE 2021 (2021).
77 Louisiana Proclamation No. 170 JBE 2021 (2021).
72
73

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The Federal Rules contemplate time extensions when the clerk’s office is
“inaccessible.” 78 General Order 21-12 specifically stated that the federal courthouse
and the office of the Clerk of Court were not meaningfully accessible within the
meaning of Federal Rule of Civil Procedure 6(a). 79 Thus, this Court properly invoked
its authority under Federal Rule of Civil Procedure 6(a) and suspended and extended
all filing deadlines. Plaintiff’s argument to the contrary is unavailing.
Accordingly, Defendant Tedder-Hairfield’s deadline to file his Notice of
Removal was extended from September 3, 2021 to September 27, 2021. Defendant
Tedder-Hairfield filed his Notice of Removal on September 7, 2021, within this
extended period. 80 Defendant’s Notice of Removal was timely filed.
IV.

CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand is DENIED.
New Orleans, Louisiana, January 11, 2022.

______________________________
WENDY B. VITTER
United States District Judge

See Fed. R. Civ. P. 6(a).
Id.
80 See R. Doc. 10.
78
79