S & S Investment Company, Inc. v. Petrohawk Properties, L.P.

Filing 10

MEMORANDUM RULING re 5 Motion to Remand.Signed by Judge Donald E Walter on 6/3/2009. (crt,Reasor, Mary)

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PECE~VED JUN 0 32009 - MOORE. OLLRK WESTERN HISTRICT OF LOUISiANA SHREvEpORT, LOUISIANA WRY H UNITED STATES I)ISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION S & S INVESTMENT COMPANY, INC. VERSUS PETROIIAWK PROPERTIES. LP, ET AL CIVIL ACTION NUMBER 09-0716 DISTRICT JUDGE WALTER MAGISTRATE JUDGE HORNSBY MEMORANDUM RULING Before this Court is a Motion to Remand [Record Document 5], filed on behalf of Plaintiff, S &. S Investment Company, Inc. Plaintiff reqoests the case he remanded to the proper Louisiana state court on the basis that all defendants failed to join in the Notice of Removal as required by2$ U.S.C. I. § 1446. FACTUAL BACKGROUND S & S Investment Company, Inc. ("Plaintiff') tiled suit in the First Judicial District Court. Caddo Parish. State of Louisiana against Petrohawk Properties, LP ("Petrohawk") and Eli Rehich (~LRehiclf~or cancellation of a mineral lease and for damages. Long--arm service was effected f) on Rchich on April 13, 2009 and Pctrohawk on April 15, 2009. Petrohawk tiled a Notice of Removal on April 30, 2009 based diversity jurisdiction. [Rec. Doe. 1]. Although Rehich did not expressly join in the Notice of Removal, Petrohawk included an assertion that: "All Defendants join in this Notice of Removal." Id On May 13, 2009. Plainti IT tiled a Motion to Remand [Rec. Doe. 5] on the hasis that all defendants failed to join in the removal petition. One week later, after the thirty--day period for removal expired, Rebich tiled Consent to Removal. [Ree. Doe. 7]. Page 1 11. DISCUSSION In order to comply with the removal requirements set forth in 28 U.S.C. § 1446, all served defendants must join in the notice of removal or file written consent to removal "no later than thirty days from the date on which the first defendant was served." Gett~;Oil v Ins. Co. of N. America, 841 F.2d 1254. 1262-63 (5th Cir. 1988); Ku/en \VL 4299990, * 1'. At/an/ic Paper & Foil, LW, 2007 ~ (W.D. La.), citing Farias v. I3exar Coon/v Board of Trustees, 925 F.2d 866, 87 1 * (5°Cir. 1991); Ri/cs v. S/evens hanspart, Inc., 2006 WL 3843029, 1 (W.D.La). While it is true that consent is all that is reqLlired to satisfy § 1446, "a defendant must do so itsel 1" Ge/tv Oil, 841 F.2d at 1261 n. 11 "This does not mean that each defendant must sign the original . petition for removal, hut there must he 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." U, 841 F.2d at 1262 n. 11; see a/so, Gil/is v. Louisiana, 294 F.3d 755, 759 (5° Cir. 2002). In the Notice of Removal. Pctrohawk alleged: "All Defendants Join in this Notice of Removal." [Rec. Doe. 1]. But the notice lacked any allegations indicating Petrohawk had the authority to formally or otherwise represent to the Court that Rehich consented to removal. Consequently, Petrohawk's Notice of Removal fails to satisfy the unanimity requirement of § 1446. Further. the Consent to Removal filed by Rcbich 37 clays after service is irrelevant. Sec Ki//cn, 2007 WL 4299990, *2. Ge/tv Oil makes clear that the Consent to Removal Iilcd after the expiration of the thirty--day removal period cannot cure any defects that exist in the Notice of Removal. U at n. I, citing Morales ~ S/ia//cr. 2007 WL 3237457 (E.D.La.) ("I'he requirement that a defendant give consent within 30 days after the first defendant receives service is a rigid Page 2 rule."). Ill. CONCLUSION Plaintiff timely movcdl to remand hased on a procedural defect iii the removal. Bccaasc the Gets do not reflect adequate, timely consent by all served defendants as required by 28 U.S.C. § 1446, the matter must he remanded to the proper state court. Therefore, IT IS ORDERFI) that Plaintiffs Motion to Remand [Rcc. Doe. sl be and is hereby GRANTED. I'his case is remanded to the First Judicial District Court, Caddo Parish, State of Louisiana. THUS DONE AND S1GNEI) in Shreveport, Louisiana, this ~ day of June, 2009. ~ L1~ DONALD F. WALTER UNITEI) STATES DISTRICT JUDGE Page 3

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