Robinson v. Wheeler et al
Filing
57
ORDER denying 52 Motion for Reconsideration. Signed by District Judge Debra M. Brown on 8/16/16. (tab)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
ANTHONY MARTEL ROBINSON
PLAINTIFF
V.
NO. 4:15-CV-104-DMB-JMV
ZACKERY WHEELER,
WHEELER SUPPORTIVE SERVICES, INC.,
1 WHEELER TRUCKING COMPANY, LLC, and
JOHN DOES 1–10
DEFENDANTS
ORDER DENYING MOTION FOR RECONSIDERATION
On February 12, 2016, the Court granted Anthony Martel Robinson’s motion to remand,
agreeing with Robinson that the notice of removal filed by 1 Wheeler Trucking Company, LLC (“1
Wheeler”), failed to satisfy the rule of unanimity.1 Doc. #51. Thereafter, on February 25, 2016, “1
Wheeler Trucking Company, LLC’s Motion for Reconsideration, or in the Alternative, Motion to
Vacate Order on Remand and Deny Remand with Prejudice” was filed, which seeks reconsideration
of the remand order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Doc. #52. Upon
consideration of the motion, Robinson’s response, Doc. #54, and 1 Wheeler’s reply, Doc. #56,2 the
motion for reconsideration will be denied.
I
Jurisdiction
A § 1447(c) order of remand is not self-executing. Section 1447(c) provides in pertinent part
that upon the determination that a case should be remanded, “[a] certified copy of the order of
remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon
proceed with such case.” McClelland v. Gronwaldt, 155 F.3d 507, 514 n.15 (5th Cir. 1998),
1
The reasons underlying the ruling are set forth in the remand order.
2
The Court’s consideration included the supporting memoranda filed by the parties. See Doc. #53; Doc. #55.
overruled on other grounds by Arana v. Ochsner Health Plan, 338 F.3d 433, 440 (5th Cir. 2003)
(quoting 28 U.S.C. § 1447(c)). This provision creates legal significance in the mailing of a certified
copy of the remand order in terms of determining the time at which the district court is divested of
jurisdiction. Id. (citing discussion and references in Browning v. Navarro, 743 F.2d 1069, 1078–79
(5th Cir. 1984)). “On that basis, the federal court is not divested of jurisdiction until the remand
order, citing the proper basis under § 1447(c), is certified and mailed by the clerk of the district
court.”3 Arnold v. Garlock, Inc., 278 F.3d 426, 438 (5th Cir. 2001).
In this case, the Clerk of this Court has not yet mailed a certified copy of the order of remand
to the Clerk of the Circuit Court of Montgomery County, Mississippi. Consequently, the Court
retains jurisdiction to act on 1 Wheeler’s motion for reconsideration.
II
Reconsideration Standard
“The Federal Rules of Civil Procedure do not explicitly recognize a motion to reconsider.
However, [district courts] consider such motions under Federal Rule of Civil Procedure 59(e)
(motion to alter or amend a judgment), when they are filed within twenty-eight days of the
challenged judgment or order.” Garcia v. Premier Home Furnishings, No. 2:12CV167-KS-MTP,
2013 WL 6001345, at *1 (S.D. Miss. Nov. 12, 2013) (collecting cases). This rule is applicable here
because 1 Wheeler filed its motion to reconsider thirteen days after the entry of the order granting
remand.
3
“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ….”
28 U.S.C. § 1447(d). Section “1447(d) must be read in pari materia with § 1447(c), so that only remands based on
grounds specified in § 1447(c)—lack of subject matter jurisdiction or procedural defects in removal—are immune from
review under § 1447(d).” Firefighters’ Ret. Sys. v. Citco Grp. Ltd., 796 F.3d 520, 524–25 (5th Cir. 2015), cert. denied,
136 S. Ct. 896 (2016) (internal quotation marks and citation omitted). “Defects in the removal process … may include
procedural defects such as a failure to join or obtain consent to the removal from the other properly joined and served
defendants.” Penson Fin. Servs., Inc. v. Golden Summit Inv’rs Grp., Ltd., No. 3:12-CV-300-B, 2012 WL 2680667, at *3
(N.D. Tex. July 5, 2012); see Honey Holdings I, Ltd. v. Alfred L. Wolff, Inc., 81 F.Supp.3d 543, 557 (S.D. Tex. 2015)
(“[f]ailure to join in removal is a procedural defect”). A § 1447(c) remand is not reviewable even if the district court’s
remand order was erroneous. Heaton v. Monogram Credit Card Bank of Ga., 231 F.3d 994, 997 (5th Cir. 2000).
2
“There are three grounds for altering or amending a judgment under Rule 59(e): (1) an
intervening change in controlling law, (2) the availability of new evidence not previously available,
and (3) the need to correct a clear error of law or prevent manifest injustice.” Bourne v. 3M Co., No.
5:14-CV-74-DCB-MTP, 2014 WL 4847111, at *1–2 (S.D. Miss. Sept. 29, 2014) (citing Atkins v.
Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)). But, “such a motion is not the
proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or
raised before the entry” of the challenged ruling. Naquin v. Elevating Boats, L.L.C., 817 F.3d 235,
240 (5th Cir. 2016) (quoting Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)).
“Whatever may be the purpose of Rule 59(e), it should not be supposed that it is intended to give an
unhappy litigant one additional chance to sway the judge.” Stark v. Univ. of S. Miss., 8 F.Supp.3d
825, 844 (S.D. Miss. 2014) (quoting Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D. 493, 494
(S.D. Miss. 2000)).
1 Wheeler has not pointed to an intervening change in the law or the existence of new
evidence not previously available. Thus, the only remaining basis on which 1 Wheeler may prevail
is to correct a clear error of law or prevent manifest injustice.
III
Analysis
1 Wheeler advances three arguments in support of its motion for reconsideration: (1) the
unanimity rule does not apply because Zackery Wheeler was not properly served with process; (2)
the basis for remand was improperly raised in the reply brief supporting the motion to remand; and
(3) the Court erred in remanding without accepting evidentiary submissions. The Court will address
each argument in turn.
3
A. Proper Service
1 Wheeler first argues:
[R]econsideration is necessary because the Court misinterpreted substantial issues of
law and fact. The Remand Order is predicated on [Zackery] Wheeler’s failure to
consent to removal when [Zackery] had no obligation to do so because he had not—
and still has not—been properly served with process.
Doc. #53 at 7 (footnote omitted). This argument is unpersuasive.
In his motion to remand, Robinson argued that 1 Wheeler failed to comply with the
unanimity requirement of the removal statute. Doc. #16 at 3–5. At that time, 1 Wheeler, as the
removing party, had an affirmative duty to respond with all of its arguments supporting removal.4 1
Wheeler did not do so. As explained in the Court’s order granting remand:
[I]n response to Robinson’s argument concerning unanimity, 1 Wheeler does not
contend that the unanimity requirement is invalid, that such requirement does not
apply here, that Robinson waived this argument, that Zackery’s consent was
unnecessary because he is a nominal party or was fraudulently joined or was not
properly served with process prior to removal, or the like. Instead, 1 Wheeler’s sole
contention in response to Robinson’s unanimity objection is that this requirement is
satisfied by the written consent that was filed on August 17, 2015. Put differently, 1
Wheeler has effectively conceded that it was required to obtain Zackery’s joinder or
consent.
Doc. #51 at 13–14 n.9 (citations omitted). In other words, 1 Wheeler’s argument that Zackery was
not properly served could, and should, have been advanced in response to the motion to remand.
Because it was not, the Court declines to alter its remand order based on the alleged improper service
on Zackery Wheeler. See Gassie v. SMH Swiss Corp. for Microelectric & Watchmaking Indus., No.
CIV. A. 97-3557, 1998 WL 132763, at *1 (E.D. La. Mar. 20, 1998) (denying motion to reconsider
4
See Tilley v. Tisdale, 914 F.Supp.2d 846, 852 (E.D. Tex. 2012) (“Removing Defendants have the burden to establish
the propriety of removal. When considering a motion to remand, the removing party bears the burden of showing that
federal jurisdiction exists and that removal was proper. This extends not only to demonstrating a jurisdictional basis for
removal, but also necessary compliance with the requirements of the removal statute.”) (internal quotation marks,
alterations, and citations omitted).
4
where motion was based on “repetitive contentions on matters that have already been before me or
arguments that might have been raised prior to judgment”).
B. Reply Brief Argument
1 Wheeler next argues that the Court improperly considered Robinson’s argument that
Zackery failed to consent in his individual capacity because the argument was raised for the first
time in Robinson’s reply brief. Doc. #53 at 8–9. This argument is also not compelling.
The Court explained its reasoning for considering Robinson’s argument in the remand order:
Robinson first articulated his argument concerning the capacity in which [Zackery]
consents in his reply brief. Ordinarily, this Court does not consider arguments raised
for the first time in a reply brief. However, because the removing party carries the
burden of demonstrating the propriety of the removal and the lack of unanimity was
raised in the timely filed motion to remand, the Court will nonetheless consider the
argument.
Doc. #51 at 12 n.7 (citation omitted). The Court writes here only to further clarify this rationale.
As the removing party, 1 Wheeler carried the burden of resisting Robinson’s motion to
remand by establishing its “compliance with the requirements of the removal statute.” Tilley, 914
F.Supp.2d at 852 (quoting Roth v. Kiewit Offshore Servs., Ltd., 625 F.Supp.2d 376, 382 (S.D. Tex.
2008)). Once Robinson challenged 1 Wheeler’s compliance with the rule of unanimity, 1 Wheeler,
to establish jurisdiction, had an obligation to demonstrate that it had complied with the rule of
unanimity or that the rule somehow did not apply in this case. 1 Wheeler chose the former, arguing
that it had obtained the consent of all of the defendants. As made clear in the Court’s remand order:
The rule of unanimity … requires that there 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 the authority to do so, that it has actually
consented to such action. Each defendant must consent to removal officially,
affirmatively and unambiguously.
Doc. #51 at 6 (internal quotation marks, alterations, and citations omitted). This means that 1
Wheeler could only rely on a defendant’s consent to the extent such defendant indicated its official,
5
affirmative and unambiguous consent. Thus, 1 Wheeler’s duty to address the adequacy of Zackery’s
consent did not arise from Robinson’s reply brief; rather, it arose when 1 Wheeler chose to rely on
Zackery’s consent in response to the motion to remand. Consequently, 1 Wheeler cannot
legitimately claim that it was surprised or prejudiced in any way by the Court’s consideration of
Robinson’s argument.
For all such reasons, the Court declines to alter its remand order based on 1 Wheeler’s second
argument.
C. Evidentiary Submissions
Finally, citing Dart Cherokee Basin Operating Company, LLC v. Owens, 135 S. Ct. 547, 551
(2014), 1 Wheeler argues “the Court should have allowed evidentiary submissions on the issue of
service before rending a judgment on remand.” Doc. #53 at 9. This argument fails because Dart
Cherokee is inapposite in several respects. Dart Cherrokee concerned a removal under the Class
Action Fairness Act, which is not involved in this case.5 Moreover, this case does not involve a
dispute over the amount in controversy, which was the subject of the sole question answered in Dart
Cherokee:
To assert the amount in controversy adequately in the removal notice, does it suffice
to allege the requisite amount plausibly, or must the defendant incorporate into the
notice of removal evidence supporting the allegation? That is the single question
argued here and below by the parties and the issue on which we granted review. The
answer, we hold, is supplied by the removal statute itself. A statement “short and
plain” need not contain evidentiary submissions.
135 S. Ct. at 551. 1 Wheeler has offered no authority interpreting Dart Cherokee to hold that an
evidentiary hearing is always required before remanding a case, and 1 Wheeler has offered no
5
See Archibold v. Time Warner Cable, Inc., No. CV 15-1776 FMO JPRX, 2015 WL 3407903, at *2 n.3 (C.D. Cal. May
27, 2015) (“Defendant’s reliance on Dart Cherokee … is misplaced. Dart Cherokee applies to removals under the Class
Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).”).
6
compelling reason for this Court to be the first to do so. For these reasons, the Court declines to alter
its remand order based on 1 Wheeler’s final argument.
IV
Conclusion
For the reasons above, 1 Wheeler’s motion [52] for reconsideration is DENIED.6
SO ORDERED, this 16th day of August, 2016.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE
6
For the same reasons, 1 Wheeler’s alternative request for the Court to vacate its remand order and deny remand with
prejudice is also denied.
7
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