Bourne v. 3M Company et al

Filing 21

ORDER denying 17 Motion for Reconsideration. Signed by Honorable David C. Bramlette, III on September 29, 2014. (AA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ARTHUR RAY BOURNE

PLAINTIFF

VS.

CIVIL ACTION NO: 5:14-cv-74-DCB-MTP

3M COMPANY, et al.

DEFENDANTS

ORDER DENYING MOTION TO RECONSIDER
This matter is before the Court on Defendants’ Motion to
Reconsider [docket entry no. 17] pursuant to Federal Rule of Civil
Procedure 59(e). The Court has already entered an Order Holding
this Motion in Abeyance [docket entry no. 18]. The Plaintiff filed
his Response to the motion after the Court entered its Order. The
Defendants have now responded as the Court ordered. Therefore,
having

considered

the

motion

and

responses,

the

applicable

statutory and case law, and being otherwise fully informed in the
premises, the Court finds as follows:
The defendants urge in their motion that this Court made a
manifest error of fact in its ruling on the motion to remand. The
Court granted the motion to remand because it found the notice of
removal procedurally deficient; defendants had not satisfactorily
shown the notice of removal complied with the rule of unanimity.
The defendants now show through their motion to reconsider that
they did indeed meet this requirement.

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However,
jurisdiction

the
to

plaintiff

review

an

asserts

order

that

remanding

this
a

Court

case:

“An

lacks
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).
Congress has indeed strictly limited the ability of the courts to
review orders of remand, following the clear preference for limited
federal jurisdiction. The general rule is that a district “is
completely divested of jurisdiction once it mails a certified copy
of the remand order to the clerk of the state court.” In re Shell
Oil Co., 932 F.2d 1523, 1528 (5th Cir. 1991). However, if a “remand
order [is] based on a defect in removal procedure . . . an
exception to non-reviewability exists.” Id.; see also Rockingham v.
Men’s Health Ctr., 204 F. Supp. 2d 967, 968 (S.D. Miss. 2002).
Because the Court remanded this case for a defect in the removal
procedure, the Court finds that it has jurisdiction to rule on the
plaintiff’s motion to reconsider.
“Rule 59(e) is properly invoked ‘to correct manifest errors of
law or fact or to present newly discovered evidence.” In re
Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002) (quoting
Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). A
court has considerable discretion in ruling on a Rule 59(e) motion,
limited by the need to balance “two competing imperatives: (1)
finality, and (2) the need to render just decisions on the basis of
all the facts.” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6

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F.3d 350, 355 (5th Cir. 1993). The defendants argue that the Court
made a “manifest error of fact” when it found that the defendants
had not complied with the rule of unanimity.
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.
Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss.
1990). The defendants have not pointed to an intervening change in
the law. The fact that all other necessary defendants in this case
had been previously dismissed is a fact previously available to the
defendants. Thus the only remaining option on which the defendants
can prevail is to correct a clear error of law or prevent manifest
injustice.
The Court finds that the parties need for finality outweighs
any consideration of facts not already before this Court. Further,
the Court maintains its power to raise a procedural defect in the
notice of removal sua sponte in this case because the plaintiff
moved

for

remand

within

the

thirty

(30)

day

time

period.

Schexnayder v. Entergy La., Inc., 394 F.3d 280, 284 (5th Cir. 2004)
(holding district court can raise sua sponte issues not asserted in
plaintiff’s timely motion for remand). It also maintains that on
the facts presented to it in the notice, the defendants failed to

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demonstrate their compliance with the rule of unanimity, justifying
the order of remand. Therefore, the Court finds no clear error of
law

in

this

case.

Also,

because

the

parties

will

have

the

opportunity to fully litigate this case in state court and no one
questions the ability of that court to provide a full and fair
proceeding, there is no manifest injustice committed by remand.
Based

on

the

preceding

reasoning,

the

Court

will

deny

the

defendants’ motion to reconsider.
The defendants alternatively filed their motion requesting
leave to amend their notice of removal to allege that they were the
only two remaining defendants in the case, satisfying the rule of
unanimity. “Although a defendant is free to amend a notice of
removal within the 30-day period set forth in 28 U.S.C. § 1446(b),
once the 30-day period has expired, amendment is not available to
cure a substantive defect in removal proceedings.” Spillers v.
Tillman, 959 F. Supp. 364, 372 (S.D. Miss. 1997). “Once the thirty
day period has expired, any amendments to the notice of removal
must be made pursuant to 28 U.S.C. § 1653.” Marshall v. Skydive Am.
S., 903 F. Supp. 1067, 1070 (E.D. Tex. 1995). Section 1653 only
permits amendment of “defective allegations of jurisdiction.” 28
U.S.C. 1653. The failure of a defendant to consent to removal is a
nonjurisdictional defect. Intercoastal Refining Co., Inc. v Jalil,
487 F. Supp. 606, 608 (S.D. Tex. 1980). Therefore the Court denies
the defendants’ motion to amend their notice of removal.

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The plaintiff quotes a case, cited by the defendants, as well,
that states a defendant cannot amend the notice of removal “to add
a missing jurisdictional allegation” after thirty (30) days. Pl.’s
Resp. p. 1, ECF No. 19 (quoting Bynum v. First Chem. Corp., No.
3:05cv22, 2007 WL 869573 (S.D. Miss. Mar. 20, 2007)). Reading this
case with the other precedent cited by this Court, it could be
understood that a defendant cannot amend his notice of removal
after thirty days. However, upon a close reading of Bynum, the
Court finds the quoted language to be an inelegant summary of the
holding in Whitmire v. Victus Ltd., 212 F.3d 885 (5th Cir. 2000).
In Whitmire, the court held: “[w]hile a district court can remedy
inadequate jurisdictional allegations, it cannot remedy defective
jurisdictional facts.” Whitmire, 212 F.3d at 888. The facts of
Bynum support this reading: the defendant sought to amend the
notice of removal to seek jurisdiction under a different statute,
but the court found that statute did not create jurisdiction.
Bynum, 2007 WL 869573, at *1. Therefore, the Court finds the rule
stated in Bynum and Whitmire to be inapposite to this case.
Based on the foregoing reasons,
IT

IS

HEREBY

ORDERED

that

the

defendants’

Motion

for

Reconsideration or, in the alternative, For Leave to Amend Notice
of Removal is DENIED.
SO ORDERED, this the 29th day of September 2014.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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