Opelousas-St Landry Realty Co Inc v. B P America Production Co et al

Filing 18

MEMORANDUM RULING re 15 MOTION to Remand filed by Opelousas-St Landry Realty Co Inc, GRANTED 17 Consent MOTION to Remand filed by B P America Production Co, Pan American Petroleum Corp DENIED AS MOOT. Signed by Magistrate Judge Patrick J Hanna on 6/11/13. (crt,Jordan, Paula)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
OPELOUSAS-ST. LANDRY REALTY
COMPANY, INC.

CIVIL ACTION NO. 6:13-CV-00811

VERSUS

JUDGE HAIK

BP AMERICA PRODUCTION
COMPANY, ET AL.

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING

Currently pending before the court is the plaintiff’s motion to remand (Rec.
Doc. 15). The motion is not opposed. In fact, the removing defendants, BP America
Production Company and Pan American Petroleum Corporation, filed a separate
motion in favor of remand (Rec. Doc. 17). For the reasons set forth below, the
motion to remand will be granted, and this action will be remanded to the 27th Judicial
District Court, St. Landry Parish, Louisiana.

BACKGROUND
This lawsuit originated in the 27th Judicial District Court, St. Landry Parish,
Louisiana. In the plaintiff’s petition (Rec. Doc. 1-1 at 1-14 and Rec. Doc. 1-2 at 1-7),
which was filed in state court on December 14, 2012, the plaintiff claims that oil and
gas exploration activities allegedly conducted by the four defendants resulted in

contamination or other damage to certain property owned, resided upon, or used by
the plaintiff.
On March 18, 2013, defendants BP America Production Company and Pan
American Petroleum Corporation removed the action to this forum. (Rec. Doc. 1).
Although the removing defendants alleged that diversity of citizenship is the basis for
this court’s subject-matter jurisdiction, they admitted that the plaintiff and defendant
Sevarg Company, Inc. are both Louisiana citizens. The removing defendants argued,
however, that Sevarg’s citizenship should be disregarded because Sevarg was
improperly joined.
In their removal notice, the removing defendants also alleged that defendants
BHP Petroleum (Americas) Inc. and Sevarg Company, Inc. consented to the removal.
In support of the assertion that BHP and Sevarg consented to removal, the removing
defendants attached copies of unauthenticated e-mail correspondence indicating that
BHP’s counsel “do not object to the removal of this matter to federal court” (Rec.
Doc. 1-3 at 2) and indicating that “Sevarg does not oppose removal of this case to
federal court.” Later, on May 1, 2013, BHP filed a document in the suit record,
consenting to the remand. (Rec. Doc. 14).
The plaintiff responded to the removal with a motion to remand, in which the
plaintiff argued that BHP and Sevarg did not properly or timely consent to the
-2-

removal and also argued that the removing defendants are unable to prove that Sevarg
was improperly joined.
On June 7, 2013, BP and Pan American (the removing defendants) filed a
motion (Rec. Doc. 17) styled a “Consent Voluntary Motion to Remand,” in which
they urge the Court to remand this action to state court. Neither Sevarg nor BHP
joined in the removing defendants’ motion for remand. In fact, Sevarg has not filed
any documents responsive to the plaintiff’s complaint, and no counsel has enrolled
for Sevarg in this action.

ANALYSIS
Federal district courts are courts of limited jurisdiction, possessing only the
power authorized by the Constitution and by statute.1 Accordingly, federal courts
have subject-matter jurisdiction only over civil actions presenting a federal question2
and those in which the amount in controversy exceeds $75,000 and the parties are
citizens of different states.3 For that reason, a suit is presumed to lie outside a federal

1

See, e.g., Griffin v. Lee, 621 F.3d 380, 388 (5th Cir. 2010); Halmekangas v. State
Farm Fire and Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010); Howery v. Allstate Ins., Co., 243 F.3d
912, 916 (5th Cir. 2001).
2

28 U.S.C. § 1331.

3

28 U.S.C. § 1332.

-3-

court's jurisdiction until the party invoking federal-court jurisdiction establishes
otherwise.4 Because “the effect of removal is to deprive the state court of an action
properly before it, removal raises significant federalism concerns.”5 The removal
statute must therefore be strictly construed, and any doubt about the propriety of
removal must be resolved in favor of remand and against federal-court jurisdiction.6
The party invoking subject-matter jurisdiction in federal court has the burden of
establishing the court’s jurisdiction by a preponderance of the evidence.7 When an
action is removed from state court, as this suit was, the removing party bears the
burden of proving that federal-court jurisdiction exists.8 Accordingly, BP and Pan
American, the removing parties, have the burden of establishing that this Court has
subject-matter jurisdiction over this action.
To remove a case based on diversity jurisdiction, a defendant must demonstrate
“that all of the prerequisites of diversity jurisdiction contained in 28 U.S.C. § 1332

4

Howery v. Allstate, 243 F.3d at 916.

5

Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir. 1995).

6

Carpenter v. Wichita Falls, 44 F.3d at 366; Acuna v. Brown & Root Inc., 200 F.3d
335, 339 (5 Cir. 2000).
th

7

Howery v. Allstate Ins. Co., 243 F.3d at 919; St. Paul Reinsurance Co., Ltd. v.
Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998).
8

Shearer v. Southwest Service Life Ins. Co., 516 F.3d 276, 278 (5th Cir. 2008); Boone
v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005); Manguno v. Prudential Property and Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

-4-

are satisfied.”9 In this case, the removing defendants contend that these criteria are
satisfied when the citizenship of the allegedly improperly joined defendant is
disregarded, while the plaintiff argues that complete diversity does not exist because
there is no basis for disregarding Sevarg’s citizenship. The plaintiff also argues that
there is a procedural defect in that BHP and Sevarg did not properly or timely consent
to removal.
The procedure for removal is set forth in 28 U.S.C. § 1446. “In suits where
there are multiple defendants, the Fifth Circuit has interpreted this statute as requiring
that all served and properly joined defendants consent to removal. A failure to do so
renders the removal defective.”10 Under the rule of unanimity, “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. Otherwise, there would be
nothing on the record to ‘bind’ the allegedly consenting defendant.”11 Since removal
is timely if the notice of removal is filed within thirty days after the defendant’s

9

Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 572 (5th Cir. 2004) (en

banc).
10

Mumfrey v. Anco Insulations, Inc., No. 11-711, 2011 WL 1527180, at * 3 (E.D. La.
Apr. 20, 2011) (internal citations omitted).
11

Getty Oil Corp. v. Ins. Co. of North America, 841 F.2d 1254, 1262 n. 11 (5th Cir.

1988).

-5-

receipt of a copy of the state-court petition,12 the consent by a non-removing
defendant must also be filed within that same thirty day time period.13 In other words,
all served defendants must join in or consent to removal no later than thirty days from
the day on which the first defendant was served.14 “Failure to comply with the
thirty-day time limitation or with the unanimity requirement renders the removal
procedurally defective.”15 Any procedural defect may provide a basis for remand.16
In this case, Sevarg was served on March 19, 2013 (Rec. Doc. 2-6 at 23), Pan
American and BP were served on March 22, 2013 (Rec. Doc. 2-6 at 24 and 25,
respectively), and BHP was served on March 28, 2013 (Rec. Doc. 2-6 at 26). The
defendants had until April 19, 2013 to join in or consent to removal. The removal
notice was filed on April 18, 2013. It, therefore, was timely. But the only evidence
presented to show consent by Sevarg and BHP were unauthenticated copies of e-mail
correspondence.

12

28 U.S.C. § 1446(b)(1).

13

See, e.g., Jones v. Scogin, 929 F.Supp. 987, 988 (W.D. La. 1996).

14

Getty Oil v. Ins. Co. of North America, 841 F.2d at 1263.

15

Jones v. Scogin, 929 F.Supp. at 988.

16

See 28 U.S.C. § 1447(c).

-6-

In several other cases, e-mail correspondence has been rejected as proof of
consent.17 More importantly, neither of the e-mails provided actually shows consent
to removal; instead, they indicate a lack of objection to removal. This has been held
to be inadequate to show consent.18
On a motion to remand, the removing party bears the burden of showing that
removal was proper. This burden extends not only to demonstrating a jurisdictional
basis for removal, but also necessary compliance with the procedural requirements
of the removal statute.19 In this case, however, neither BP nor Pan American has
argued that the removal was procedurally correct. Instead, they argue, in their own
motion for remand (Rec. Doc. 17), that defects in the removal procedure require that
this action be remanded. “The untimeliness of a removal petition is a ground for
remand that is authorized under Section 1447(c).”20 Accordingly, the undersigned
finds that neither BHP nor Sevarg timely consented to removal.

17

See, e.g., Mumfrey v. Anco Insulations, 2011 WL 1527180, at * 4, and the cases cited

therein.
18

See, Getty Oil v. Ins. Co. of North America, 841 F.2d at 1262 n. 11; Bridge Point
Yacht Center Inc. v. Calcasieu Parish Sheriff's Office, No. 13-cv-257, 2013 WL 1197143, at *3
(W.D. La., Mar. 25, 2013).
19

See Brigham v. Pennywise RV Sales & Servs., Inc., 2005 WL 435260, at *2 (W.D.La.
Feb. 16, 2005).
20

BEPCO, L.P. v. Sante Fe Minerals, Inc., 675 F.3d 466, 470 (5th Cir. 2012) (citations

omitted).

-7-

Having found that the removal is procedurally defective, the undersigned
concludes that this action should be remanded to state court.21 The undersigned
therefore pretermits discussion of the second basis on which the plaintiff seeks
remand.

CONCLUSION
Having found that the removal of this action was procedurally defective,
IT IS ORDERED that the plaintiff’s motion to remand (Rec. Doc. 15) is
GRANTED;
IT IS FURTHER ORDERED that the removing defendants’ motion for remand
(Rec. Doc. 17) is DENIED AS MOOT; and
IT IS FURTHER ORDERED that the oral argument on the motion to remand
that was previously scheduled for June 25, 2013 is CANCELLED.
Signed at Lafayette, Louisiana on June 11, 2013.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

21

See, e.g., Jones v. Scogin, 929 F.Supp. at 988.

-8-