Cameron Parish et al v. Aspect Energy L L C et al

Filing 39

MEMORANDUM ORDER: For reasons stated herein, that plaintiffs 7 Motion to Remand is GRANTED, and defendants 28 Motion for Leave to File, Motion to Amend/Correct is DENIED. The effect of this order re 7 Motion to Remand is to be stayed for a per iod of fourteen (14) days to allow any aggrieved party to seek review from the district court. Should no party seek review then the clerk is to return this matter to the appropriate state court. Signed by Magistrate Judge Kathleen Kay on 8/23/2011. (crt,Putch, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
STATE OF LOUISIANA and THE
CAMERON PARISH SCHOOL
BOARD

:

VERSUS

:

:

:
ASPECT ENERGY LLC, AZIMUTH
ENERGY LLC, CONOCOPHILLIPS
COMPANY, DUNDEE PETROLEUM,
INC.

DOCKET NO. 2:11-CV-00489

JUDGE MINALDI

:
:

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

This court granted defendant ConcoPhillips Co.’s Motion for Oral Argument Doc. 27 on
May 23, 2011. After conducting an extensive review of both the record and pleadings this court
concludes that the issue presented before it is clear and oral argument would not assist in the
ultimate determination of this matter.
For reasons stated herein, that plaintiffs’ Motion to Remand Doc. 7 is GRANTED, and
defendant’s Motion for Leave to File an Amended Notice of Removal Doc. 28 is DENIED.
Facts and Procedural History
This suit was originally filed On May 13, 2010, in the 38th Judicial District, Cameron
Parish, Louisiana. Doc. 1 att. 2. In the original complaint plaintiffs, the State of Louisiana and
the Cameron Parish School Board, named as defendants Aspect Energy LLC, Azimuth Energy
LLC, ConocoPhillips Co., and Dundee Petroleum Inc. Service of process of the original petition
for damages was made on May 20, 2010. Doc. 1. Plaintiffs amended their original petition for
damages, and service of process of the amended petition was executed on March 1, 2011. Doc.
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1.
Defendant ConocoPhilips Co. sought removal of this suit to the United States District
Court Western District of Louisiana on March 24, 2011, based on the belief that this court has
“original jurisdiction of this matter because (a) Article III, § 2 of the United States Constitution
establishes such jurisdiction, (b) one of the plaintiffs is the state of Louisiana; and (c)
ConocoPhillips is a citizen of states other than Louisiana, specifically Delaware and Texas.”
Doc. 1, p. 2. Defendant ConocoPhillips Co. states in its Notice of Removal that “[c]ounsel for
Aspect Energy LLC and Azimuth Energy LLC has informed undersigned counsel that both of his
clients consent to removal.” Doc. 1, p. 3.
On April 1, 2011, plaintiffs filed a motion to remand alleging that removal was improper
for various reasons, most notably because ConocoPhillips’ notice of removal was 1) untimely
under 28 U.S.C. § 1446, 2) procedurally defective due to its failure to obtain the written consent
to removal from co-defendants (Azimuth LLC and Aspect LLC), and 3) lacked a valid basis for
this court to exercise jurisdiction over this matter. Doc. 7, p.1-2. This motion is now before the
court
On May 23, 2011, in response to plaintiffs’ April 1, 2011, Motion to Remand, defendant
ConocoPhilips Co. filed a motion requesting leave to file an amended notice of removal. Doc.
28, p 2. ConocoPhillips Co. did not concede that their notice of removal was defective in any
way but alleged that they were requesting leave to amend their petition “in an abundance of
caution – and in order to clear a purported obstacle to this court retaining jurisdiction over this
case.” Id. This motion is also before this court.
Law and Analysis
Section 1441 of Title 28, United States Code, provides that “any civil action brought in a
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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 an action is not initially removable, but later becomes removable, the second paragraph of §
1446(b) directs that,
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,
except that a case may not be removed on the basis of [diversity of citizenship]
more than one year after commencement of the action.
28 U.S.C. § 1446(b); see also McCabe v. Ford Motor Co., No. 10-98, 2010 WL 2545513, at *5
(E.D. Tex. June 21, 2010) (“While the first paragraph of § 1446(b) applies to cases that are
removable based on the initial pleadings, paragraph two applies to cases that are not removable
at the time of filing but become removable at a later date.”). Further, section 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 Oil Corp. v. Ins. Co. of North America,
841 F.2d 1254 at 1262 (5th Cir. 1988).
The burden of proof for establishing federal jurisdiction is placed on the party 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)).
I.

Consent to Removal
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

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unanimity.”1 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, supra, the Fifth Circuit held that this 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; see also 16 James WM. Moore, Moore’s Federal Practice §107.30[2][a][ii][B] (3d. ed.
2010) (stating that “‘join in’ has been defined to mean support in writing”). Furthermore, “a
mere statement by the removing defendant to the effect that all other defendants who have been
served with summons in the action have stated that they consent to removal or that they do not
object to removal is insufficient” for purposes of satisfying the ‘rule of unanimity’. See 16
James WM. Moore, Moore’s Federal Practice §107.30[2][a][ii][B] (3d. ed. 2010) (citing
Ogletree v. Barnes, 851 F. Supp 184, 188 (E.D. Pa. 1994); Roe v. O’Donohue, 38 F.3d 298, 301
(7th Cir. 1994); Beard v. Lehman Bros. Holdings, Inc., 458 F. Supp. 2d 1314, 1319-1321 (M.D.
Ala. 2006). “[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.,
1

 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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L.P., No. 4-824, 2004 WL 1196980, at *2 (E.D. La. May 26, 2004); see also Garner v. Hyken,
2011 WL 1002098 (E.D. La. March 18, 2011) (granting plaintiff’s motion to remand, because not
all of the served defendants timely joined or consented to removal); Beard v. Lehman Brothers
Holdings, Inc., 458 F.Supp. 2d 1314 (M.D. Ala. Sept. 15, 2006); 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).
In Aucoin, defendants filed a Notice of Removal which did not include the written
consent of all served defendants, but simply included an averment stating: “All properly joined
and served defendants consent to the removal of this matter.” Aucoin v. Gulf South Pipeline Co.,
L.P., No. 4-824, 2004 WL 1196980, at *1 (E.D. La. May 26, 2004). Consequently, defendant
filed a Motion for Leave to Amend their notice of removal pursuant to 28 U.S.C. § 1653, in order
to add the written consent of their co-defendants and cure their notice of removal’s procedural
defectiveness. Id. at 1. The Eastern District, relying on Fifth Circuit jurisprudence, most notably
Getty Oil, supra, found that the defendant’s failure to adequately reflect the consent of all
defendants in a removal notice is a defect which is not curable by amendment and requires
remand. Id. at 1-3.
Like the Defendant in Aucoin, ConocoPhilips Co.’s Notice of Removal did not include
the written consent of all served defendants, but simply noted: “Counsel for Aspect Energy,
LLC and Azimuth Energy LLC has informed undersigned counsel that both of his clients consent
to removal.” Doc. 1 p. 3. Furthermore, like the defendant in Aucoin, ConocoPhilips Co. moved
to amend its Notice of Removal pursuant to 29 U.S.C. § 1653 in hopes of curing any procedural
defects in its Notice of Removal; however, ConocoPhillips Co., like the defendant in Aucoin
filed a motion to amend its notice of removal only after the 30 day time limitation of 28 U.S.C. §
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1446(b) had expired.2
Consequently this court finds that ConocoPhilips Co.’s Notice of Removal is
procedurally defective due to its failure to include an adequate expression of consent of all
named defendants. This defect renders defendant’s Notice of Removal invalid, and this court
must remand this matter to state court accordingly. Therefore, plaintiff’s Motion to Remand
Doc. 7 is proper, and is hereby GRANTED3.
II.

Motion to Amend Notice of Removal

Defendant ConcoPhillips Co. filed a motion for leave to amend their Notice of Removal in
this court on May 23, 2011, in hopes of curing the procedural defect caused by their failure to
satisfy the rule of unanimity. Doc. 28.

As we noted in the preceding section the “failure to

adequately reflect the consent of all defendant in a removal notice is a defect incurable 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) (citing Smith v. Union Nat’l Life Ins., 187 F.Supp.
2d 635 (S.D. Miss. 2001); Sims v. Ward, 2001 WL 110436 (E.D. La. 2001); Mayers v. Connell,
651 F. Supp. 273 (M.D. La. 1986). A defendant may amend his removal petition, if he does so
within the thirty day time period set forth in 28 U.S.C. § 1446 (b). Id. (citing Courtney v.
Bendetto, 627 F.Supp. 523, 527 (M.D. La. 1986). Once the thirty day delay period has run, the
only means available to amend a deficient notice of removal is 28 U.S.C. § 1653. Id. (citing
Marshall v. Skydive America South, 903 F.Supp. 1067, 1069 (E.D. Tex. 1995). However, 28
2

 Defendants filed a motion for leave to amend their original Notice of Removal on May 23, 2011, approximately 83
days after Plaintiff’s executed service of process of their amended complaint. Doc. 28.  
3
Plaintiffs’ Motion to Remand contains several alternative grounds upon which they contend that this court could
properly order the remand of this matter. See generally Doc. 7. However, this court’s determination that defendant
ConocoPhillips Co., failed to satisfy the rule of unanimity is sufficient justification for remand, in and of itself.
Therefore, because remand is proper upon this ground alone, this court need not address those ancillary issues raised
in plaintiffs’ motion to remand.

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U.S.C. § 1653 may only be used to cure defective allegations of jurisdiction, and may not be
called upon to amend a procedural defect such as the failure of defendant to satisfy the rule of
unanimity. Id. (citing Brooks v. Rosiere, 585 F.Supp. 351 (E.D. La. 1984)).
Defendant ConocoPhillips Co. failed to amend its Notice of Removal prior to the accrual
of the thirty day time period set forth in § 1446(b), as a result it may no longer amend its notice
of removal in order to cure the procedural defects contained therein.

Further, even if

ConocoPhillips Co. was allowed to amend its notice of removal, it would have no effect upon
this court’s decision to remand as defendant’s notice of removal would still contain a procedural
defect requiring remand.
Accordingly, this court finds that defendant ConocoPhillips’ Co. motion for leave to file
an amended Notice of Removal Doc. 28 should, and is hereby DENIED.
Conclusion
In consideration of the above, this court finds that defendant ConocoPhillips Co, Notice
of Removal contained a procedural defect, and therefore plaintiffs’ Motion to Remand Doc. 7 is
hereby GRANTED. The effect of this order is to be stayed for a period of fourteen (14) days to
allow any aggrieved party to seek review from the district court. Should no party seek review
then the clerk is to return this matter to the appropriate state court.
Furthermore, for the above mentioned reasons this court finds that defendant
ConocoPhillips Co. Motion for Leave to File Amended Notice of Removal Doc. 28 should be
and is hereby DENIED.

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THUS DONE this 23rd day of August, 2011.

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