Bacon et al v. Vaughn et al
Filing
17
ORDER granting 5 Motion to Remand to State Court Signed by Honorable David C. Bramlette, III on 10/14/2015 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
VALERIE BACON and
HAROLD BACON
PLAINTIFFS
VS.
CIVIL ACTION NO. 5:15-cv-44(DCB)(MTP)
ROGER VAUGHN and
BIG RIVER OIL FIELD SERVICES, L.L.C.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This case is before the Court on the plaintiffs Valerie and
Harold Bacon (“the Bacons”)’s Motion to Remand (docket entry 5).
Having carefully considered the motion, defendant Big River Oil
Field Services, L.L.C. (“Big River”)’s response, the parties’
memoranda and the applicable law, and being fully advised in the
premises, the Court finds as follows:
On December 31, 2014, the plaintiffs filed their original
Complaint against the defendants in the Circuit Court of Adams
County, Mississippi.
The Complaint alleges that the plaintiffs’
vehicle was rear-ended by a truck owned and operated by defendant
Big River, and driven by defendant Roger Vaughn (“Vaughn”).
original Complaint was not served on any of the defendants.1
The
On
May 14, 2015, the plaintiffs filed a First Amended Complaint in
state court.
Big River asserts that it was “ostensibly served”
with a copy of the Summons and Complaint on May 14, 2015.
1
Notice
A third defendant, Big River Oil and Gas, L.L.C., was
voluntarily dismissed by the plaintiffs in state court on May 11,
2015.
of Removal, ¶ 7.
Four days later, on May 18, 2015, Big River filed
a “proper and timely” Notice of Removal to this Court, asserting
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Id., ¶¶ 4,
8.
The plaintiffs assert that defendant Vaughn’s failure to
consent to or join in the Notice of Removal, as required by the
“rule of unanimity,” creates a defect in the Notice of Removal.
Motion to Remand, p. 1, fn.1; Memorandum in Support of Motion to
Remand, p. 3.
Consent of all co-defendants who have been properly
served is required for removal. See Eagle Capital Corp. v. Munlake
Contractors,
Inc.,
2012
WL
568701,
*2
(S.D.
Miss.
Feb.
21,
2012)(citing Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir. 1992)).
The Fifth Circuit recognizes three exceptions to the rule of
unanimity: “(1) improperly or fraudulently joined defendants; (2)
nominal or formal parties; and (3) defendants who have not been
served by the time of removal.”
Eagle Capital, 2012 WL 568701 at
*2 (internal citations omitted).
Big River does not contend that Vaughn was improperly or
fraudulently joined, nor does it argue that Vaughn is merely a
nominal or formal party.
Instead, Big River asserts that Vaughn
“has not been served at the time of removal and is not required to
join in or consent [to the Notice of Removal].” Notice of Removal,
¶ 8, fn.1.
Rule 4 of the Mississippi Rules of Civil Procedure, like its
2
federal counterpart, requires that service of the summons and
complaint must be “made upon a defendant within 120 days after the
filing of the complaint ....”
4(m).
Miss.R.Civ.P. 4(h); Fed.R.Civ.P.
If service is not made within 120 days, the plaintiff must
“show good cause why such service was not made within that period.”
Miss.R.Civ.P. 4(h).
The advisory committee note to Miss.R.Civ.P.
Rule 4(h) advises:
If service cannot be made within the 120-day period, it
is clearly advisable to move the court within the
original time period for an extension of time in which to
serve the defendant. If the motion for extension of time
is filed within the 120-day time period, the time period
may be extended for “cause shown” pursuant to Rule
6(b)(1).
If a motion for extension of time is filed
outside of the original 120-day time period, the movant
must show “good cause” for the failure to timely serve
the defendant pursuant to Rule 4(h).
See Johnson v.
Thomas, 982 So.2d 405 (Miss. 2008).
Miss.R.Civ.P. 4(h) Adv. Comm. Note.
On April 13, 2015, within the original 120-day time period,
the Bacons moved the state court for an extension of time (an
additional 60 days) to serve the defendants, on grounds that after
diligent
search
defendants.
and
inquiry
they
were
unable
(docket entry 1-3, pp. 18-19)2.
to
locate
the
Also on April 13,
2015, counsel for plaintiffs filed an Affidavit stating that after
diligent search and inquiry, he had been unable to learn the
address of defendant Vaughn.
Plaintiff’s Counsel also advised the
state court that he was requesting service by publication pursuant
2
All docket entry numbers refer to this Court’s docket.
3
to Miss.R.Civ.P. 4. (docket entry 1-3, pp. 20-21).
On April 15, 2015, Adams County Circuit Court Judge Forrest A.
Johnson granted the plaintiff’s motion for extension of time.
He
found that the plaintiffs had been “unable to locate the defendants
after diligent search and inquiry in Adams and Wilkinson Count[ies,
Mississippi] and Concordia Parish [Louisiana], having attempted
service of process through Sheriff’s departments in all three
counties and parishes.”
entry 1-3, pp. 24-25).
Order Granting Extension of Time (docket
Judge Johnson further found that the
plaintiffs’ attempts to locate the defendants through private
entities had also been fruitless, and that the plaintiffs sought
service by publication.
Id. (docket entry 1-3, p. 25).
The Order
Granting Extension of Time allowed the plaintiffs 60 additional
days to effect service of process under Rule 4, including service
by publication.
Id.
Service by publication on defendant Vaughn was begun on April
17, 2015, in the Natchez Democrat, and ran for two more successive
weeks, April 24 and May 1, 2015.
Rule 4(c)(4)(B) provides that
“[t]he publication of said summons shall be made once a week during
three successive weeks in a public newspaper of the county in which
the complaint ... is pending ....”
Miss.R.Civ.P. 4(c)(4)(B).
Service by publication was complete on May 1, 2015, the date of the
last publication.
See Miss.R.Civ.P. 4(c)(4)(B).
Thus, service of
process on defendant Vaughn was complete before Big River filed its
4
Notice of Removal on May 18, 2015.
Big River states that “[u]nder Rule 4(c)(4) of the Mississippi
Rules of Civil Procedure, service by publication may be utilized in
either
chancery
court
or
in
another
court
publication is authorized by statute.”
(docket entry 14, p. 5).
where
process
by
Big River’s Response
It also quotes the Advisory Committee
Notes to Rule 4:
Publication service is authorized by Rule 4(c)(4) and is
limited to defendants in chancery court proceedings and
other proceedings where service by publication is
authorized by statute. Service by publication is further
limited to defendants who are nonresidents or who cannot
be found within the state after diligent inquiry.
Miss.R.Civ.P. 4(c)(4) Adv. Comm. Note (quoted in Big River’s
Response (docket entry 14, p. 5)).
Big River concludes: “Thus, a
plaintiff may use publication as a method of service of process
under two circumstances (1) when the action is pending in chancery
court; or (2) when the action is in any other court and publication
is authorized by statute.
chancery
court
and
Because this action was not pending in
because
there
is
no
applicable
statute
authorizing service by publication under the circumstances (i.e.,
in a personal injury action brought in circuit court), Plaintiffs’
attempt to serve Mr. Vaughn by publication was defective and
improper.”
Id.
The Court finds that despite the quoted language in Rule
4(c)(4)
and
the
Advisory
Committee
Notes,
Rule
81
of
the
Mississippi Rules of Civil Procedure provides that the Rules, in
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general, “apply to all civil proceedings but are subject to limited
applicability in the following actions which are generally governed
by statutory procedures ....
Statutory procedures specifically
provided for each of the above proceedings [subsections 81(a)(1)(12)] shall remain in effect and shall control to the extent they
may be in conflict with these rules; otherwise these rules apply.”
Miss.R.Civ.P. 81(a)(emphasis added).
The Mississippi Supreme Court has held that “[o]ur Rules of
Civil Procedure ‘apply to all civil proceedings’ in circuit and
chancery court.”
USF&G Ins. Co. of Miss. v. Walls, 911 So.2d 463
(Miss. 2005)(first emphasis in original, second emphasis added)
(citing Miss.R.Civ.P. 81; Miss.R.Civ.P. 1).
None of the limiting
subsections under Rule 81(a) refer to proceedings in circuit court
per se, nor do they refer to personal injury actions. Furthermore,
other than the twelve subsections which are subject to specific
statutory
procedures,
all
other
cases
Mississippi Rules of Civil Procedure.
are
governed
by
the
City of Jackson v. Byram
Incorporators, 16 So.3d 662, 672 (Miss. 2009).
In Page v. Crawford, 883 So.2d 609 (Miss. App. 2004), a civil
suit arising out of a motor vehicle accident, the plaintiff,
Crawford, like the plaintiffs in this case, had attempted service
by both process servers and the county sheriff’s office.
Also, as
in this case, service was first attempted at the address the
defendant driver had given police at the time of the accident, then
6
at addresses supplied by the process servers.
not be found at any of those addresses.
The defendant could
Id. at 610.
The plaintiff
then attempted to complete service through publication in the local
newspaper on August 6, 13 and 20, 2002. However, the plaintiff had
filed her Complaint on April 17, 2002.
The 120 day period for
service of process expired on August 15, 2002, five days before the
plaintiff’s service by publication was complete.
On September 6, 2002, the defendant filed a motion to dismiss
based on the plaintiff’s failure to serve process within 120 days.
The plaintiff answered the motion and filed a motion to allow outof-time service.
The circuit court denied the motion for out-of-
time service and granted the defendant’s motion to dismiss. Id. at
611.
The Mississippi Court of Appeals noted that “the circuit
court did not make a finding pertaining to whether good cause
existed, but merely held that Crawford’s motion to dismiss was well
taken and should be granted.”
Id. at 612.
The Court of Appeals
therefore reversed the judgment of the circuit court and remanded
for a determination of whether good cause was shown.
Id.
While not addressing the question of service of process via
publication directly, the Court of Appeals did note that “[s]ervice
of process by publication is only permissible after the plaintiff
has failed in locating the defendant to effect personal service
following diligent inquiry,” id., thus implying that service by
publication is available in circuit court and in particular in a
7
personal
injury
action,
if
the
requirements
of
Miss.R.Civ.P.
4(c)(4) are met.
In the case sub judice, service of process was valid, both as
to timeliness (within the 60 day extension) and method (service by
publication), as found by the circuit court.
This Court therefore
finds that service of process on Vaughn was valid under Mississippi
law, and that Vaughn was required to join in or consent to the
Notice of Removal.
“[T]he federal removal statutes are to be construed strictly
against removal and for remand.”
Gillis v. Great Atlantic &
Pacific Tea Co., Inc., 153 F.Supp.2d 883, 884-885 (S.D. Miss.
2001).
“In
considering
disputes
concerning
jurisdiction,
a
district court, in a challenged case, may retain jurisdiction only
where its authority to do so is clear.”
Ins.
Co.,
187
F.Supp.2d
635,
638
quotation and citation omitted).
Smith v. Union Nat. Life
(S.D.
Miss.
2001)(internal
“A removing defendant bears the
burden of demonstrating that jurisdiction properly lies with the
district court, and that removal was, indeed, proper.”
Id.
In this case, the removing defendants have failed to meet
their burden of showing that Vaughn was not properly served prior
to the Notice of Removal.
Big River was required to obtain
Vaughn’s consent to or joinder in the Notice of Removal, and its
failure to do so, as required by the “rule of unanimity,” creates
a defect in the Notice of Removal. The Court shall therefore grant
8
the Motion to Remand.
Accordingly,
IT IS HEREBY ORDERED that the plaintiffs’ Motion to Remand
(docket entry 5) is GRANTED.
A separate Order of Remand, remanding this case to the Circuit
Court of Adams County, Mississippi, shall be entered this date.
SO ORDERED, this the 14th day of October, 2015.
/s/ David Bramlette
UNITED STATES DISTRICT COURT
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