Pourciau et al v. Gonzalez et al

Filing 9

RULING granting 4 Motion to Remand (certified copy mailed to appropriate judicial district court). Signed by Judge Frank J. Polozola on 10/21/2011. (CMM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOHN and COURTNEY POURCIAU,
INDIVIDUALLY AND ON BEHALF
OF THEIR MINOR CHILD, EMMA
POURCIAU

CIVIL ACTION

VERSUS

NUMBER 11-589-FJP-CN

SAUDIEL GONZALES, EL CHAPIN
AUTO TRANSPORT CORPORATION, AND
CASTLEPOINT FLORIDA INSURANCE
COMPANY
RULING ON MOTION TO REMAND
This matter is before the Court on the Motion to Remand filed
by the plaintiffs.1

The defendants have failed to oppose this

motion within 21 days as required by Local Rule 7.5M; therefore,
the Court must assume that the defendants have no opposition to
this motion.2
Further, the Court finds that the motion should be granted as
a matter of fact and law.

Plaintiffs have moved for remand under

28 U.S.C. § 1447(c), claiming a defect in the procedure for
removal.

28 U.S.C. § 1446(b) creates a 30 day time limit for

removal; the 30-day period is mandatory and must be strictly

1

Rec. Doc. No. 4.

2

See Local Rule 7.5M, which requires “[e]ach respondent
opposing a motion is required [to] file a response, including
opposing affidavits, memorandum, and such supporting documents as
are then available, within 21 days after service of the motion.”
Doc#47537

18th JDC

construed.3

The “rule of unanimity” applies to removed cases with

multiple defendants: “Absent exceptional circumstances, all served
defendants must join or otherwise file a written notice of consent
to removal before the expiration of the 30-day removal period in 28
U.S.C. § 1446.”4
Applying the “first-served defendant” rule, the Fifth Circuit
requires that all defendants that have been served before removal
must consent to removal within 30 days after service of the firstserved defendant.5

In order for all the defendants to consent to

the removal, it is not necessary for each of them to sign the
original notice of removal, but “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 authority to do so, that it has actually consented to
such action.”6
In this case, the record shows that the plaintiffs effected
service of process on the defendants via the Louisiana Long Arm
Statute7 on July 25, 2011.

Record Document Number 1-2, page 2,

3

Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d
1254, 1263(5th Cir. 1988).
4

Id., at 1261-62.

5

Id., at 1263.

6

Id., at 1262, n. 11.

7

La. R.S. 13:3201, et seq.

Doc#47537

shows that defendant Castlepoint Florida Insurance Company was
served on August 16, 2011.
on August 25, 2011.

Castlepoint filed a Notice of Removal

Plaintiffs moved to remand on September 12,

2011, alleging the removal is procedurally defective since the codefendants did not timely consent to the removal as required by 28
U.S.C. § 1446.

Defendants Saudiel Gonzales and El Chapin Auto

Transport Corporation did file a Joinder in Removal on September
23, 2011; however, this was clearly untimely under the “firstserved defendant” rule as discussed above.8
Therefore, pursuant to 28 U.S.C. 1447(c), this case shall be
remanded back to the District Court of the Eighteenth Judicial
District of the Parish of Iberville, State of Louisiana.
IT IS SO ORDERED.
Baton Rouge, Louisiana, October 21, 2011.

S
FRANK J. POLOZOLA

MIDDLE DISTRICT OF LOUISIANA

8

See e.g., Goldman v. Nationwide Mutual Insurance Company, 2011
WL 3268853 (E.D. La., July 28, 2011)(where co-defendant filed
consent to removal five days outside the 30-day time period allowed
and court remanded case); Cornella v. State Farm Fire and Cas. Co.,
No. 10-1169, 2010 WL 2605725 (E.D. La. Jun 22, 2010)(where notice
confirming joinder in removal was filed 3 days after the 30-day
limit for removal had expired, and court remanded case finding
notice of removal failed to satisfy the requirements of Section
1446.).
Doc#47537