Davis v. AAA Cooper Transportation et al

Filing 15

Memorandum Opinion and Order granting 9 Motion to Remand filed by Olynthus M Davis. This case is REMANDED to the 14th Judicial District Court of Dallas County, Texas. (Ordered by Senior Judge A. Joe Fish on 12/19/2016) (epm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

OLYNTHUS M. DAVIS,
Plaintiff,
VS.
AAA COOPER TRANSPORTATION,
ET AL.,
Defendants.

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CIVIL ACTION NO.
3:16-CV-2860-G

MEMORANDUM OPINION AND ORDER
Before the court is the plaintiff’s motion to remand this case to the state court
from which it was previously removed (docket entry 9). For the reasons stated
below, the motion is granted.
I. BACKGROUND
On August 30, 2016, the plaintiff, Olynthus M. Davis (“Davis”), commenced
this action against the defendants, AAA Cooper Transportation (“AAA”), XTRA
Lease, LLC (“XTRA”), and Timothy Aguilar, in the 14th Judicial District Court of
Dallas County, Texas. See XTRA’s Notice of Removal (“Notice”) ¶¶ 1, 6-8 (docket
entry 1). AAA was served on September 6, 2016. Affidavit of Service at 2 (docket
entry 1-9). The removing defendant, XTRA, was served on September 8, 2016, and

removed the action to federal court on October 11, 2016.* Notice ¶ 2. XTRA’s
notice of removal states that the prior-served defendant, AAA, “has consented to the
removal of this action.” Id. ¶ 10.
On November 10, 2016, Davis filed this motion to remand. Plaintiff’s Motion
to Remand (“Motion”) (docket entry 9). On December 1, 2016, XTRA timely filed a
response. XTRA’s Response in Opposition to Plaintiff’s Motion to Remand
(“Response”) (docket entry 11). The motion is now ripe for decision.
II. ANALYSIS
A. Legal Standard
28 U.S.C. § 1441(a) permits the removal of “any civil action brought in a
[s]tate court of which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). The statute allows a defendant to “remove a
state court action to federal court only if the action could have originally been filed in
federal court.” Anderson v. American Airlines, Inc., 2 F.3d 590, 593 (5th Cir. 1993).
However, the removal statute must be strictly construed because “removal
jurisdiction raises significant federalism concerns.” Willy v. Coastal Corporation, 855
F.2d 1160, 1164 (5th Cir. 1988); see also Gutierrez v. Flores, 543 F.3d 248, 251 (5th
Cir. 2008). Therefore, “any doubts concerning removal must be resolved against

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Because Monday, October 10, 2016 was a federal holiday, XTRA timely
filed its notice of removal.
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removal and in favor of remanding the case back to state court.” Cross v. Bankers
Multiple Line Insurance Company, 810 F. Supp. 748, 750 (N.D. Tex. 1992) (Means, J.);
see also Shamrock Oil & Gas Corporation v. Sheets, 313 U.S. 100, 108-09 (1941). The
party seeking removal bears the burden of establishing federal jurisdiction. Willy,
855 F.2d at 1164.
B. XTRA’s Removal Is Procedurally Defective
Davis contends that XTRA’s removal is procedurally defective because XTRA
did not properly obtain AAA’s consent to removal. See Motion at 2. 28 U.S.C.
§ 1446(b) provides that “[t]he notice of removal of a civil action or proceeding shall
be filed within thirty days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for relief upon
which such action or proceeding is based. . . .” Moreover, XTRA correctly contends
that the removal statute merely requires that an earlier-served defendant consent to
removal. See Response at 2-3; see also 28 U.S.C. § 1446(b)(2)(C). However, the issue
in this case is not whether the removal statute permits AAA to consent to removal,
but whether AAA properly consented to XTRA’s removal.
To properly consent to removal, each defendant, or someone with formal
authority to act on the defendant’s behalf, must timely submit a “written indication”
of consent. Getty Oil Corporation v. Insurance Company of North America, 841 F.2d
1254, 1262 n.11 (5th Cir. 1988); Luckett v. Harris Hospital-Fort Worth, 764 F. Supp.

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436, 442 (N.D. Tex. 1991) (McBryde, J.) (“[T]here must be some timely ‘written
indication’ from each served defendant, or from some representative purporting to
have authority to formally act on the defendant’s behalf in this respect, showing that
the defendant has actually consented to such removal”). “Getty thus allows [the
removing defendant] thirty days from the time it was served with process to obtain
[the other served defendant’s] consent to removal.” Couch v. Howard, No. 3:06-CV0610-G, 2006 WL 1627916, at *2 (N.D. Tex. June 8, 2006) (Fish, Chief J.).
Here, because XTRA was served on September 8, 2016, the deadline to obtain
AAA’s consent to removal was thirty days later on October 11, 2016. See Notice ¶ 2;
see also Couch, 2006 WL 1627916, at *2. However, XTRA’s October 11, 2016
notice of removal contains only a conclusory statement that “Defendant AAA has
consented to the removal of this action.” Notice ¶ 10. XTRA’s notice lacks any
“written indication” submitted by AAA showing that AAA has consented removal.
See Grand Texas Homes, Inc. v. American Safety Indemnity Company, No. 3:12-CV-1773M, 2012 WL 5355958, at *2 (N.D. Tex. Oct. 30, 2012) (Lynn, J.) (“[The removing
defendant’s] unilateral representation that the other Defendants had consented to
removal does not satisfy the stringent Fifth Circuit standard.”).
AAA filed its notice of consent to removal on November 11, 2016 -- well after
the October 11, 2016 deadline. See AAA’s Notice of Consent to Removal (docket
entry 10). Because AAA is a previously-served defendant that did not timely consent

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to removal, XTRA’s removal is procedurally defective. Thus, the case should be
remanded to state court. See Couch, 2006 WL 1627916, at *2 (remanding a case
that was procedurally defective because one of the defendants did not timely consent
to removal).
III. CONCLUSION
For the reasons stated above, the plaintiff’s motion is GRANTED. This case
is REMANDED to the 14th Judicial District Court of Dallas County, Texas.
The clerk shall mail a certified copy of this order to the district clerk of Dallas
County, Texas. 28 U.S.C. § 1447(c).
SO ORDERED.
December 19, 2016.

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A. JOE FISH
Senior United States District Judge

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