Hargrove v. Bridgestone Firestone North American Tire L L C et al

Filing 87

ELECTRONIC ORDER denying 27 Motion to Remand. For reasons set forth in the attached Memorandum Order, the motion is DENIED. Signed by Magistrate Judge Kathleen Kay on 3/2/2012. (jud,Kay, Kathleen) (Main Document 87 replaced on 3/2/2012) (Benoit, T).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
JOHNNY HARLAN HARGROVE

:

DOCKET NO. 10-CV-0318

VS.

:

JUDGE MINALDI

BRIDGESTONE/FIRESTONE NORTH
AMERICAN TIRE, LLC, ET AL

:

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

For the reasons stated herein, plaintiff’s motion to remand [doc. 27] is DENIED.
Facts and Procedural History
This suit was originally brought on March 3, 2009, in the Fourteenth Judicial District
Court, Calcasieu Parish, State of Louisiana. Doc. 1, att. 7. In the original complaint, plaintiff
Johnny Harlan Hargrove named as defendants Bridgestone/Firestone, its insurers, and three
executives, all citizens of the State of Louisiana for diversity purposes (“Louisiana Defendants”).
Id. On November 9, 2009, plaintiff amended his complaint [doc. 1, att. 10] to include sixteen
additional defendants (“Diverse Defendants”), all non-citizens of the State of Louisiana for
diversity purposes. See docs. 2, 5, 7, 11, 15, 16, 18, 19, 22-24, 41.
Diverse Defendant Flint Hills sought removal of this suit on February 25, 2010, based on
a belief that “the plaintiff compromised and released his claims against [Louisiana Defendants]
prior to the filing of the [amended complaint] on November 19, 2009.” Doc. 1, p. 9. The
reasons for these “beliefs” were supplied in affidavits included with the removal notice. In
support defendant Flint Hills submitted an affidavit from attorney for Diverse Defendant Foot
Hills Resources, LP, stating that, in a conversation with plaintiff’s counsel, plaintiff’s counsel
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“represented that prior to the filing of the First Supplemental and Amending Petition, [Louisiana
Defendants] had entered into an agreement to compromise and settle the claims asserted . . . .”
Doc. 1, att. 3, p. 2.

Counsel for another Diverse Defendant also testified that a paralegal for

plaintiff had informed her that plaintiff had “reached a settlement with [Louisiana Defendants]
and dismissal documents had been executed . . . .” Doc. 1, att. 4, p. 1.
On March 16, 2010, Diverse Defendant Flint Hills received discovery responses that
confirmed plaintiff had in fact settled with Louisiana Defendants on November 1, 2009. Doc.
43, att. 1. The settlement agreement mandated that plaintiff file for dismissal of Louisiana
Defendants in state court within “ten (10) days of execution of this Agreement,” which would
have been December 3, 2009. Id. at p. 10. Plaintiff, however, obviously had not filed for
dismissal in state court as required and Diverse Defendants had no definitive knowledge of
settlement until receipt of those discovery responses on March 16, 2010. Id. at p. 4. At this
point, the case had been pending in state court for one year and thirteen days.
On March 23, 2010, plaintiff filed a motion to remand claiming there was no basis for
removal at the time Diverse Defendant’s original notice was filed as Louisiana Defendants had
not been dismissed. Doc. 27, p.1. On April 12, 2010, all defendants filed a joint opposition to
the motion to remand. Doc. 43.
On April 15, 2010, in response to Plaintiff’s March 16, 2010, discovery responses
Diverse Defendants moved for leave to supplement their original notice of removal [doc. 1] to
assert that jurisdiction did in fact exist at the time of removal, that it was no longer just a belief.
Doc. 44. This motion for leave was granted September 3, 2010, [doc. 51] and the supplemental
notice was docketed that same day. Doc. 52.
After examining the unique issues involved in this remand, this court issued an order

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[doc. 55] requesting that the parties “provide additional briefing on the issue of whether the rule
of unanimity as defined in Getty Oil Corp. v. Ins. Co. of N. America, 841 F.2d 1254 (5th Cir.
1988) has been satisfied in this proceeding.” Id. Plaintiff and defendants timely responded to
the court’s order. Docs. 58, 59.
Law
Section 1441 of Title 28, United States Code, provides that “any civil action brought in a
State court of which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States for the
district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a).
If removal is based on diversity of citizenship, the action is removable only if there is complete
diversity and “none of the parties in interest properly joined and served as defendants is a citizen
of the State in which such action is brought.” 28 U.S.C. § 1441(b).
A notice of removal must be filed within thirty days after receipt by defendant of an
initial pleading; however,
a notice of removal may be filed within thirty days after receipt by the defendant .
. . 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 . . .
.
28 U.S.C. § 1446(b). In any event when the basis of jurisdiction is diversity of citizenship a case
may not be removed “more than one year after commencement of the action.” Id
So analysis of timeliness of removal in a diversity action requires two separate
considerations: (1) was the notice of removal filed within thirty days of the receipt of the initial
pleading or, if not removable initially, within thirty days of receipt of the “other paper” from
which defendant ascertained the matter became removable; and (2) was the notice of removal
filed within one year of commencement of the action?
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One final point pertinent to our consideration here is that § 1446(b) has been interpreted
to require that all served defendants join in the removal petition within thirty days of ascertaining
that the case has become removable. Getty, 841 F.2d at 1262. This is commonly referred to as
the rule of unanimity.
There is no question that this suit was initially non-removable because diversity was
lacking. There is also no question that at this point diversity exists because all non-diverse
defendants have been dismissed and new diverse defendants were added.

Plaintiff maintains

however that remand is in order because non-diverse defendants named in the original complaint
had not been dismissed before removal. Plaintiff also maintains that the notice of removal was
filed more than thirty days following filing of the amended complaint that named Diverse
Defendants and therefore was not timely. See generally Doc. 27, Att. 1. Finally plaintiff argues
that because suit was filed March 3, 2009, and because non-diverse defendants had not been
dismissed at the time the original notice was filed, “[p]ursuant to 28§1466 (sic), this matter was
pending for over a year and is not subject to removal.” Doc. 27, Att. 1, p. 3.
Defendants oppose the remand. Doc. 43. The burden of proof for establishing federal
jurisdiction and avoiding remand is placed on defendants, the parties seeking removal and is to
be construed narrowly and in favor of remand to state court. Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100 (1941); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988) (citing
Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)).
Analysis
1. Was Removal Proper Where Non-Diverse Defendants had Not Been Dismissed at
Time of Removal?
The mere presence of non-diverse defendants in this litigation at the time of removal does
not render the removal improper. The question is whether the non-diverse defendants were truly
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“present” in this litigation; and the answer is that they were not. Upon plaintiff’s voluntary
action in terminating his claims against the non-diverse defendants through compromise, those
parties became nominal parties and presented no bar to this removal.
As noted earlier 28 U.S.C. § 1446(b) allows removal even when not removable originally
once it is “ascertained that the case . . . has become removable . . . ;” however, that leave to
remove has been jurisprudentially limited by development of the “voluntary-involuntary” rule.
That rule holds that “an action nonremovable when commenced may become removable
thereafter only by the voluntary act of the plaintiff.” Weems v. Louis Dreyfus Corp., 380 F.2d
545, 547 (5th Cir. 1967) (citing Powers v. Chesapeake & O. Ry., 169 U.S. 92 (1898) and
Whitcomb v. Smithson, 175 U.S. 635 (1900)). For example, diverse defendants cannot remove a
suit when non-diverse defendants have been dismissed pursuant to a directed verdict or a similar
action by the court because that directed verdict is not voluntary or done by plaintiff. Weems,
380 F.2d at 548; see also Canova v. C.R.C., Inc. of La., 602 F.Supp. 817, 818 (M.D. La. 1985)
(citing Phillips v. Unijax, 625 F.2d 54 (5th Cir. 1980)) (noting that “the Fifth Circuit has recently
described Weems as reaffirming the ‘voluntary-involuntary rule’”).
When, as here, there is a voluntary action by the plaintiff, i.e. the execution of settlement
documents showing no intention of proceeding against those particular defendants, the case
becomes removable.1 See e.g. Taco Tico of New Orleans, Inc. v. Argonaut Great Central Ins.
Co., No.09-3502, 2009 WL 2160436, *2 (E.D. La. July 16, 2009) (quoting Estate of Martineau
v. ARCO Chemical Co., 203 F.3d 904, 910 (5th Cir. 2000)) (“Defendants who have settled are
nominal parties who are ‘no longer effectively a party to the case.’”); Green v. City Services
Refinery, No. 06-330, 2007 WL 2008526, *3 (W.D. La. Feb. 22, 2007) (“Had Plaintiffs filed a
1

Weems itself actually recognized settlement as a voluntary act triggering removability. See Weems, 380 F.2d at
546 (noting that the “danger” that the rule seeks to alleviate “does not arise where a plaintiff voluntarily drops a
resident defendant . . .”).
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motion to voluntarily dismiss all of the non-diverse defendants, there would be little dispute that
the ‘voluntary act’ element of the voluntary-involuntary rule would be satisfied.”); Erdey v.
American Honda Co., Inc., 96 F.R.D. 593, 599 (M.D. La. 1983) (citing Kilpatrick v. The Arrow
Co., 425 F.Supp. 1378 (W.D. La. 1977)) (“Settlement by plaintiff with all non-diverse
defendants has been held to render the case removable.”); Hammons v. Ohio Cas. Ins. Co., No.
09-30-KSF, 2009 WL 997098 (E.D. Ky. Apr. 14, 2009) (same).
Plaintiff argues that because “the dismissal of [Louisiana Defendants] was not filed with
[the State court] at the time of the removal notice,” the suit was not removable on February 25,
2010, the date the notice was filed. Doc. 27, att. 1, p. 3.

However, the fact that the judgment

of dismissal had not been signed by the State court is of no consequence – what matters is that
there was an “expression of the intent by plaintiff which makes the case removable.” Erdey, 96
F.R.D. at 599; see also Heniford v. American Motors Sales Corp., 471 F.Supp. 328 (D.S.C.
1979); Southern Pacific Co. v. Haight, 126 F.2d 900 (9th Cir. 1942), cert. denied 317 U.S. 676
(1942).
What constitutes an “expression of the intent” is an issue of state law. Martineau v.
ARCO Chemical Co., 25 F.Supp.2d 762, 765 (S.D. Tex. 1998) (citing Vasquez v. Alto Bonito
Gravel Plant Corp., 56 F.3d 689, 694 (5th Cir.1995), abrogated in part on other grounds by
Estate of Martineau, 203 F.3d 904). In Louisiana consideration of whether a valid compromise
exists is a two-step process. See e.g. Lege v. Wal-Mart Louisiana LLC, No. 07-1694, 2009 WL
5195949, *3 (W.D. La. Dec. 30, 2009); American Century Cas. Co. v. Sale, No. 45,560-CA,
2010 WL 3665847, *3 (La. App. Ct. Sept. 22, 2010). Article 3071 of the Louisiana Civil Code
provides: “A compromise is a contract whereby the parties, through concessions made by one or
more of them, settle a dispute or an uncertainty concerning an obligation or other legal

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relationship.” Louisiana courts have interpreted this Article as requiring “(1) mutual intention of
preventing or putting an end to litigation, and (2) reciprocal concessions of the parties to adjust
their differences.” Hancock Bank of Louisiana v. Holmes, 40 So.3d 1131, 1134 (La. App. Ct.
2010).
Plaintiff’s express, written agreement to accept a sum certain to terminate litigation
against the non-diverse defendants and those defendants’ agreement to pay that sum constitutes a
compromise as defined by Louisiana law. See doc. 43, att. 1, p. 5-13. Money was distributed on
November 11, 2009, “in consideration of settlement . . . .” Doc. 43, att. 1, p. 4.
For the foregoing reasons, the court finds that the settlement of November 23, 2009, was
a valid, enforceable compromise pursuant to LA. CIV. CODE arts. 3071 and 3072. This suffices
as an “expression of intent” under Louisiana Law. That expression of intent constituted a
voluntary action that made this previously non-removable case removable as it made the nondiverse defendants nominal parties whose presence in the lawsuit could be ignored.
2. Was Removal Timely?
a. The Thirty-Day Rule
Plaintiff next argues the notice of removal was untimely as it was filed more than thirty
days following filing of the amended complaint that named Diverse Defendants. See Doc. 27,
Att. 1, p. 2.
As noted earlier 28 U.S.C. § 1446(b) requires notice of removal be filed within thirty
days of the initial pleading or thirty days “after receipt by the defendant . . . 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 . . . .” The date relied upon by plaintiff to claim
untimeliness is November 9, 2009, the date the amended pleading was filed naming Diverse

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Defendants. That amended pleading was neither the initial pleading nor one from which it was
ascertainable that the action was removable. At the time of the amended complaint the Louisiana
defendants remained in the suit and Diverse Defendants were unaware that the claims against
Louisiana defendants already had been or were soon to be compromised.
Here Diverse Defendants actually removed before receipt of the “other paper” from
which they were able to ascertain that the case was one which was removable, the “other paper”
being the discovery responses received March 16, 2010. It is clear from the original Notice of
Removal that Diverse Defendants removed as a precaution as they understood “[o]n information
and belief . . . plaintiff compromised and released his claims against” Louisiana defendants.
Doc. 1, p. 9. Diverse Defendants had yet at that point to receive any “other paper” that would
establish definitively that the matter was removable.
This court does have an independent obligation to examine the basis of its jurisdiction, it
being a court of limited jurisdiction. Save the Bay, Inc., v. U.S. Army, 639 F.2d 1100, 1102 (5th
Cir. 1981). A consideration of whether a Notice of Removal filed before receipt of the “other
paper” would be effective is a consideration that may be saved for another day insofar as Diverse
Defendants supplemented their original notice on April 15, 2010, less than thirty days after
receipt of the “other paper” establishing removability. Accordingly the removal was timely
under paragraph two of 28 U.S.C. § 1446(b).
b. The One Year Rule
Plaintiff also argues that “[p]ursuant to 28§1446 (sic), this matter was pending for over a
year and is not subject to removal.” Doc. 27, Att. 1, p. 3. This is an attempt by plaintiff to
invoke the one-year limitation also found in paragraph two of 28 U.S.C. § 1446(b) which states
“a case may not be removed on the basis of [diversity of citizenship jurisdiction] more than 1

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year after commencement of the action.”
The action commenced in state court March 3, 2009, and was removed February 25,
2010, less than one year after commencement of the action. Plaintiff has never argued that the
February 25, 2010, removal was defective because it was filed before receipt of the “other
paper” from which removability became discernible. Again, any obligation of this court to
consider independently whether that notice was effective (since plaintiff did not urge this issue
himself) is obviated by Diverse Defendants’ supplemental notice filed April 15, 2010, within
thirty days of the receipt of the “other paper.”
April 15, 2010, the date of the supplemental notice, is indeed more than one year after
this matter was commenced in state court. This fact does not end the inquiry, however, insofar
as plaintiff’s argument of untimeliness fails to recognize the well-recognized equitable exception
to that one year limitation.
In Tedford v. Warner-Lambert Co., 327 F.3d 423, (5th Cir. 2003), the court addressed
whether the § 1446(b) one year limit on removal was absolute or subject to equitable exception
and it found the latter. The court concluded that conduct of the parties may affect whether it is
equitable to strictly apply the one year limitation on removal. Under circumstances indicating
that a plaintiff has attempted to manipulate statutory rules for determining federal removal,
thereby preventing the defendant from exercising its rights, equity may require that the one year
limit in § 1446(b) be extended. See Tedford, 327 F.3d at 427 (finding that a plaintiff's “forum
manipulation justifies application of an equitable exception in the form of estoppel”).2
2

Tedford relied in part on Morrison v. National Ben. Life Ins. Co., 889 F.Supp. 945 (S.D. Miss. 1995), a case with a
very similar fact pattern as here. See Tedford, 327 F.3d at 426, n.4 (citing Morrison). In Morrison, the plaintiffs
concealed the amount of damages sought. Id. at 949. One year and seven days after the action was commenced
plaintiffs filed a motion to amend their complaints to request an amount considerably more than the jurisdictional
limit. Id. at 947. The defendants removed and the plaintiff filed a motion to remand based on the untimeliness of the
removal notice. Id. Noting the deceitfulness of the plaintiffs’ actions, the district court concluded that “the cases at
bar cry out for a denial of Plaintiffs’ Motion to Remand, because of their obvious attempt to manipulate the forum.”
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Here, plaintiff settled with the Louisiana Defendants on November 1, 2009. Doc. 43, att.
1, p. 3. Settlement funds were disbursed on November 11, 2009. Doc. 43, att. 1, p. 4. The
settlement agreement mandated that plaintiff file for dismissal of Louisiana Defendants in state
court within ten days, or on December 3, 2009. Id. at p. 10. Plaintiff, however, did not file for
dismissal in state court or otherwise notify Diverse Defendants that he had settled with the
others. Diverse Defendants received no definitive proof of that settlement until they sought it in
discovery and then received the settlement agreement in response to that discovery on March 16,
2010. Id. at p. 4.
We can find no plausible explanation for plaintiff’s failure to dismiss the Louisiana
Defendants as required by their agreement or to formally notify the Diverse Defendants of
settlement. We can only conclude that plaintiff intentionally withheld this information from the
Diverse Defendants in order to deceive them into believing there was no diversity thereby
manipulating statutory rules for determining federal removal, thereby preventing the Louisiana
Defendants from exercising their right to remove.
The Fifth Circuit in Tedford also considered important the defendant’s vigilance in
seeking removal in determining whether to apply equitable tolling of the one-year removal
limitation. The court noted “the defendants have vigilantly sought [to remove] . . . [e]ach time it
became apparent that the right to remove existed, [defendant] sought to exercise that right.”
Tedford, 327 F.3d at 428.
Here Diverse Defendants were vigilant in seeking removal as best evidenced by their
premature removal, based merely upon a belief and nothing else, an action obviously taken to
attempt to avoid the one-year removal limitation. Diverse Defendants have satisfied this second
prong of the Tedford equitable tolling proviso.
Id. at 951.
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Equity most certainly calls for a tolling of that limitation under these circumstances. Our
failure to equitably toll here would publish a most unacceptable blueprint for plaintiffs to deprive
defendants of their right to remove under otherwise appropriate circumstances.

For these

reasons, this court exercises its equitable power to extend the limitation of 28 U.S.C. § 1446(b).
See also Nelson v. Rite Aid Corp., No. 05-0173, 2006 WL 2474005, at *3 (S.D. Miss. 2006)
(“Tedford protection is implicated where plaintiffs are vague in pleading damages and nonresponsive in answering jurisdiction-related discovery.”); Shiver v. Sprintcom, Inc., 167
F.Supp.2d 962 (S.D. Tex. 2001) (tolling § 1446(b) for similar reasons as in the instant case);
Kinabrew v. Emco-Wheaton, Inc., 936 F.Supp. 351 (M.D. La. 1996) (denying a motion to
remand where plaintiff intentionally delayed service of process until the one-year period had
expired).
3. Was There Unanimity of Consent Among Removing Defendants?
Plaintiff mentions the requirement of unanimous consent of properly served defendants
for proper removal in his memorandum in support of his Motion to Remand, but never argues
that such unanimity was lacking.

Nevertheless we once again recognize our independent

obligation to examine the basis of our jurisdiction and have reviewed the record to determine
whether such unanimity exists.
“There is no express statutory requirement for joinder or consent by co-defendants;
however, the case law firmly establishes this requirement, which is known as the ‘rule of
unanimity.’”3 Spillers v. Tillman, 959 F.Supp. 364, 368 (S.D. Miss. 1997). Under the “rule of
unanimity,” all properly served defendants must timely join in or consent to the removal. Doe,
969 F.2d at 167. In Getty Oil Corp. v. Ins. Co. of N. America, supra, the Fifth Circuit held this
3

This unanimity requirement is based on 28 U.S.C. § 1441(a) which provides that “the defendant or the defendants”
may remove the case. The courts have read these words to mean that if there is more than one defendant, then the
defendants must act collectively to remove the case. Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir.1992).
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rule requires that, pursuant to the first paragraph of § 1446(b), “since the petition must be
submitted within thirty days of service on the first defendant, all served defendants must join in
the petition no later than thirty days” after § 1446(b) is triggered. 841 F.2d at 1262-63; see also
White v. White, 32 F.Supp.2d 890, 892-93 (W.D. La. 1998) (“All served defendants must join in
the removal, and since the notice of removal must be filed within thirty days of service on the
first defendant, all served defendants must join in the removal no later than thirty days from the
day on which the first defendant is served.”).

This consent must be in writing, because

“[o]therwise, there would be nothing on the record to ‘bind’ the allegedly consenting defendant.”
Getty, 841 F.2d at 1262 n.11. “[F]ailure to adequately reflect the consent of all defendants in a
removal notice is a defect not curable by amendment and requiring remand.” Aucoin v. Gulf
South Pipeline Co., L.P., No. 4-824, 2004 WL 1196980, at *2 (E.D. La. May 26, 2004); but see
Glover v. W.R. Grace & Co., Inc., 773 F.Supp. 964 (E.D. Tex. 1991) (allowing removal where
one party’s consent was four days late).
The Fifth Circuit also “follows the ‘first served defendant rule’ in civil actions involving
multiple defendants.” Rodriguez v. National Railroad Passenger Corp., 483 F.Supp.2d 553, 558
(W.D. Tex. 2007). Under this rule, the thirty-day time limit begins to run when § 1446(b) is
triggered as to the first defendant (as opposed to waiting to run for each defendant when that
defendant has been served). Id.
Defendant Flint Hills4 was the first defendant to receive the “other paper” evidencing
removability (the responses to discovery) on March 16, 2010. According to the record all
properly served defendants consented and the last of them consented March 31, 2010.5 Doc. 35.

4

Defendant Flint Hills was voluntarily dismissed on May 11, 2010. Doc. 50.
Defendant Petro Tex Chemical Corporation was dissolved on February 22, 2010. Doc. 20. The court record
contains no return of service on Texaco, Inc. See doc. 1, p. 7; doc. 1, att. 5, p. 6. Bridgestone Firestone North
American Tire L.L.C.; Lloyds of London; John C. Perrodin; C.R. McBride; Willard J. Drounette; and Travelers
5

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Accordingly we find that the rule of unanimity has been satisfied.
Conclusion
For reasons stated this court finds that this suit was properly removed. Accordingly,
plaintiff’s motion to remand [doc. 27] is DENIED.
THUS DONE AND SIGNED in Chambers at Lake Charles, Louisiana, on March 2,
2012.

___________________________________________________
KATHLEEN KAY
UNITED STATES MAGISTRATE JUDGE

Casualty & Surety Co. f/k/a Aetna Casualty & Surety Co. were released and dismissed on November 23, 2009.
Doc. 43, att.1, p. 5. CNA Holdings L.L.C. f/k/a CNA Holdings, Inc.; Mitsubishi International Corp.; Pharmacia
Corp. f/k/a Monsanto Co.; and Dow Chemical Co. consented to removal on February 26, 2010. Docs. 4, 8-10.
Chevron USA, Inc.; Exxon Mobil Corp.; Mobil Chemical Co., Inc.; Huntsman Advanced Materials L.L.C. f/k/a
Huntsman Polymers Corp.; and P.P.G. Industries, Inc. consented to removal on March 1, 2010. Docs. 13, 14. Shell
Oil Co. and Texas Butylene Chemical Corp. consented to removal on March 2, 2010. Doc. 17. B.P. Corp. North
America consented to removal on March 29, 2010. Doc. 34. Mitsui & Co. (USA), Inc. consented to removal on
March 31, 2010. Doc. 35.
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