Linkex Inc v. CH Robinson Company et al

Filing 25

Memorandum Opinion and Order denying 13 Motion to Remand filed by Linkex Inc. (Ordered by Judge Barbara M.G. Lynn on 4/12/2011) (dnc)

IN THE UNITED STATES DISTRICT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LINKEX, INC.,
Plaintiff,
v.
CH ROBINSON COMPANY, INC., CH
ROBINSON INTERNATIONAL, INC.,
and DARRYL ELLIS d/b/a D Logistics,
Defendants.

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CIVIL ACTION NO. 3:10-CV-2372-M

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion to Remand [Docket Entry #14]. For the reasons
stated below, the Motion is DENIED.
I.

BACKGROUND AND PROCEDURAL HISTORY

In October of 2009, LinkEx contracted with CH Robinson Company, Inc. and CH
Robinson International, Inc. (collectively “CH Robinson”), which in turn subcontracted with
Darryl Ellis, to deliver cargo from Los Angeles to Dallas. On or about October 23, 2009, while
en route, the cargo was allegedly stolen and was never recovered. On October 19, 2010, LinkEx
sued CH Robinson and Ellis in state court, alleging breach of contract, negligence, and a
violation of 49 U.S.C. § 14706.
On October 22, 2010, LinkEx served the Original Petition on CH Robinson,1 and an
affidavit of such service was filed in state court on October 26, 2010. On October 22, 2010,
LinkEx purported to serve Ellis through the Office of the Texas Secretary of State, which sent

1

Notice of Removal, Exh. 1.

Page 1 of 4

Ellis a copy of the Citation and Original Petition on October 27, 2010, via certified mail.2 The
Texas Secretary of State received the return receipt on November 8, 2010.3
On November 11, 2010, CH Robinson’s counsel sought Ellis’s consent to remove the
case to federal court, but never received a response.4 On November 15, 2010, the Texas
Secretary of State certified completion of service on Ellis, but such service was not reflected on
the state court docket sheet.5 On November 19, 2010, CH Robinson timely removed, without
obtaining Ellis’s consent. In its notice of removal, CH Robinson stated that consent by Ellis was
not necessary under the unanimity rule because Ellis had not been served at the time of removal.
After removal, Plaintiff’s process server filed with the state court an affidavit prior confirming
service on Ellis.6
Plaintiff now moves to remand the case to state court, based on Ellis’s lack of consent at
the time of removal. After the Motion to Remand was filed, Ellis filed an Answer to Plaintiff’s
Complaint in this Court [Docket Entry #21], stating he consents to removal.
II.

LEGAL STANDARD

A defendant may remove a civil action filed in state court to federal court if the district
court has original jurisdiction.7 Removal jurisdiction is strictly construed, because it implicates
important federalism concerns.8 In considering a motion to remand, a court is to resolve issues
of material fact in the plaintiff’s favor, and any doubts are to be resolved against removal.9 The

2

Pl.’s Mot. to Remand, App. 1.
Id.
4
CH Robinson’s Resp. to Pl.’s Mot. to Remand, App. 1.
5
Id.; Notice of Removal, Exh. 4.
6
CH Robinson’s Resp. to Pl.’s Mot. to Remand, App. 14.
7
28 U.S.C. § 1441(b) (2006).
8
See Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002).
9
Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).
3

Page 2 of 4

removing party bears the burden of establishing jurisdiction10 and compliance with the
requirements of the removal statute.11
The removal statute has been interpreted to require that all defendants properly joined
and served at the time of removal consent to the notice of removal.12 This is commonly known
as the “unanimity rule” or the “unanimous consent rule.”13
III.

ANALYSIS

Plaintiff’s only argument for remand is that CH Robinson did not satisfy the unanimity
rule by obtaining Ellis’s consent before removing. It is undisputed that Ellis was properly served
before CH Robinson filed its notice of removal and that Ellis had not consented to the removal at
the time CH Robinson filed its notice of removal, but it is also undisputed that CH Robinson was
unaware at the time of removal that Ellis was properly served, since the court file showed no
return of service.
Two courts in this circuit have held that consent to removal must only be accomplished
as to those codefendants who the removing defendants knew or should have known that their
codefendants were served at the time of removal.14 In Waffer v. City of Garland, the court held
that the nonremoving codefendant’s consent to removal was not required when, at the time of the
removal, the case file at the state courthouse did not indicate that the codefendant had been
served.15 Similarly, here, the state docket sheet did not give any indication that Ellis was served.

10

Shearer v. Sw. Serv. Life. Ins. Co., 516 F.3d 276, 278 (5th Cir. 2008).
Saldana v. S. Tex. Lighthouse for the Blind, No. C-10-19, 2010 WL 519689, at *2 (S.D. Tex. Feb.8, 2010).
12
Rico v. Flores, 481 F.3d 234, 239 (5th Cir. 2007) (quoting Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254,
1262 (5th Cir. 1988)).
13
See Acosta v. Master Maint. & Constr. Inc., 452 F.3d 373, 375 (5th Cir. 2006) (referring to “unanimity rule”);
Doe v. Kerwood, 969 F.2d 165, 169 (5th Cir. 1992) (referring to “unanimous consent rule”).
14
Waffer v. City of Garland, No. 3:01-cv-1355-G, 2001 WL 1148174, at *2 (N.D. Tex. Sept. 19, 2001) (Fish, J.)
(holding consent for removal unnecessary if official case file gave no indication that non-removing defendant had
been served); Milstead Supply Co. v. Cas. Ins. Co., 797 F. Supp. 569, 573 (W.D. Tex. 1992).
15
2001 WL 1148174, at *2.
11

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In Marquette Business Inc. v. America’s Kitchen, Inc., Chief Judge Fitzwater concluded
that the unanimity rule was not satisfied when the nonremoving defendant had waived any
challenge to the validity of the service of process, did not join in or consent to the removal, and,
notably, did not join in or consent to removal after the motion to remand was urged.16 The court
noted that the rationale for the unanimity rule is that a plaintiff should only be required to
proceed against multiple defendants in one action,17 and that policy is satisfied when, unlike the
situation in Marquette, the nonremoving codefendant later consents to removal.18 Here, Ellis so
consents, and therefore, there is no possibility that the case will be split by action of the
Defendants. Therefore, Ellis’s lack of consent at the time of removal does not mandate remand.
CONCLUSION
Therefore, Plaintiff’s Motion to Remand is DENIED.
SO ORDERED.
April 12, 2011.

_________________________________
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS

16

Marquette Business Inc. v. America’s Kitchen, Inc., No. 3:09-cv-1937-D, 2010 WL 1711767, at *4 (N.D. Tex.
Apr. 28, 2010) (Fitzwater, J.).
17
Id.
18
Id.; Ondova Ltd. Co. v. Manila Industries, Inc., No. 3:07-cv-1812-D, 2007 WL 4104192, at *2 (N.D. Tex. Nov.
19, 2007) (Fitzwater, J.).

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