Scott v. Estate of James Hershel et al

Filing 51

OPINION & ORDER by Magistrate Judge Kimberly E. West denying 31 Motion to Remand to State Court. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JASON BLAINE SCOTT, as
Special Administrator of
the Estate of Roger Blaine
Scott, Deceased,

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Plaintiff,
v.
THE ESTATE OF JAMES HERSHEL;
and STATE AUTO INSURANCE
COMPANIES, a Foreign
Corporation,
Defendants.

Case No. CIV-15-014-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant Estate of
Hershel’s Motion to Remand (Docket Entry #31).

Plaintiff filed

this action on November 25, 2014 in the District Court in and for
McCurtain County, Oklahoma, alleging negligence against Defendant
Estate of James Hershel (the “Estate”) in connection with an
automobile collision which resulted in the death of both Roger
Blaine Scott and James Hershel. Plaintiff asserts claims of breach
of contract and breach of the implied duty of good faith and fair
dealing

against

his

insurer,

Companies (“State Auto”).1
or about December 11, 2014.

Defendant

State

Auto

Insurance

State Auto was served by Plaintiff on
State Auto removed the case to this

Court on January 9, 2015 based upon diversity jurisdiction.
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The

This Court acknowledges State Auto’s reference in several documents
filed in this case, including the Notice of Removal, that it has been improperly
named and should have been identified as “State Auto Property & Casualty
Insurance Company.” For purposes of uniformity, this Opinion and Order will
maintain the identity of the named Defendant as it is set forth in the Petition
which originally initiated this action.

Notice of Removal did not state whether the Estate joined in the
removal.
After seeking extensions to do so, Plaintiff obtained service
upon the Estate on or about August 18, 2015.

The Estate now seeks

the remand of this case to state court because it does not consent
to its removal to this Court.
The removal of an action from state court to federal court
requires a defendant to file a notice of removal within thirty (30)
days after the service of summons.

28 U.S.C. § 1446(b).

If the

removal is made solely under Section 1441(a), “all defendants who
have been properly joined and served must join in or consent to the
removal of the action.”

28 U.S.C. § 1446(b)(2)(A).

Generally, a

defendant must file a motion to remand which is based on any defect
other than the lack of subject matter jurisdiction within thirty
(30) days after the filing of the notice of removal.

28 U.S.C. §

1447(c).
Should a defendant not be served at the time of removal,
process may be served or new process issued in the same manner as
cases which are originally filed in federal court.

This section

provides that its terms “shall not deprive any defendant upon whom
process is served after removal of his right to move to remand the
case.”

28 U.S.C. § 1448.

State Auto contends the Estate’s Motion is untimely because

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the basis for remand is procedural rather than jurisdictional,
thereby requiring that the request be filed within thirty days
after

the

filing

of

the

notice

of

removal.

The

unanimity

requirement is considered a procedural defect and a motion to
remand on that basis must be filed within thirty days of the filing
of the notice of removal. Farmland Nat’l Beef Packing Co., L.P. v.
Stone Container Corp., 98 Fed. Appx. 752, 756 (10th Cir. 2004);
Backman v. Fred Meyer Stores, Inc., 402 F.Supp.2d 1342, 1346-47 (D.
Utah 2005).

The Notice of Removal was filed on January 9, 2015 and

the motion to remand was filed on September 8, 2015, well outside
of the thirty day requirement. As a result, the Estate’s motion to
remand is considered untimely.
The Estate contends it did not have an opportunity to object
to the removal of the action because it was not served until August
18, 2015.

However, as State Auto asserts, the consent of unserved

defendants is not necessary for removal in accordance with the
express language of the statute. Sheldon v. Khanal, 502 Fed. Appx.
765, 770 (10th Cir. 2012).

While at first blush this may appear to

be an unfair result, this Court cannot ignore the statutory
mandate.
IT IS THEREFORE ORDERED that the Motion to Remand filed by
Defendant Estate of James Hershel (Docket Entry #31) is hereby
DENIED.

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IT IS SO ORDERED this 15th day of September, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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