Hammett et al v. FCA US LLC
Memorandum Opinion and Order... The court ORDERS that plaintiffs' motion to remand be, and is hereby, granted, and this action be, and is hereby, remanded to the state court from which it was removed. (Ordered by Judge John McBryde on 9/7/2017) (wxc)
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IN THE UNITED STATES DISTRICT 01JRT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
CLE~J(,~ ,J.S. DI8TKlCT COUR1'
LARRY HAMMETT, ET AL.,
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of plaintiffs, Larry
Hammett ("Larry") and Patricia Hammett, to remand. The court,
having considered the motion, the response of defendant, FCA US
LLC, the record, and applicable authorities, finds that the
motion should be granted.
On January 12, 2017, plaintiffs filed their original
petition in the 266th Judicial District Court of Erath County,
Texas, naming FCA US LLC ("FCA") and ZF North America, Inc.
("ZF") as defendants. They alleged: On or around November 17,
2015, a defective 2015 Jeep Grand Cherokee designed, tested,
marketed, distributed, and sold by FCA and ZF injured Larry when
it suddenly rolled backward, running over his foot, ankle, and
left side. Specifically, they alleged that the defect was in the
monostable electronic "E-shift" gear shift assembly.
On July 18, 2017, FCA filed its notice of removal, bringing
the action before this court. FCA claimed that the removal was
timely in that it was filed within thirty days of the dismissal
of plaintiffs' claims against ZF, which had earlier refused to
consent to removal. Removal was based on diversity under 28
Ground of the Motion
Plaintiffs assert that the removal was not timely inasmuch
as the action was removable at the time of service of plaintiffs'
Applicable Legal Standard
"The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief
§1446 (b) (1).
Removal is improper unless all defendants who have been properly
joined and served join in or consent to the removal. 28 U.S.C.
§1446 (b) (2) (A). If a defendant cannot convince his co-defendants
to join in or consent to the removal,
"he's stuck in state
court." Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253
Cir. 2006) . 1
Only if the case stated by the original pleading is not
removable may a notice of removal be filed within 30 days after
receipt by the defendant of a copy of an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is or has become removable. 28 U.S.C.
1446 (b) (3).
Here, FCA contends that the action was not initially
removable because ZF refused to consent to removal. FCA misreads
the plain language of the removal statute. Section 1446(b) (3)
only applies if the original pleading is not removable. Benson v.
Benson, No. 515-CV-202-DAE, 2015 WL 3622335, at *3
June 9, 2015); Vielma v. ACC Holding, Inc., EP-12-CV-501-KC, 2013
WL 3367494, at *4 (W.D. Tex. Apr. 16, 2013). Here, the face of
plaintiffs' original petition reflects that the action was
removable based on diversity. This is not a case where removal
would have been improper at the outset. See, e.g., Crockett v.
R.J. Reynolds Tobacco Co., 436 F.3d 529 (5th Cir. 2006) (suit
'Likewise, a defendant who is served after the removal cannot be denied his right to move to
remand the case. 28 U.S.C. § 1448.
initially nonremovable because some defendants were not diverse
and were citizens of Texas, where the action was brought) .
Rather, plaintiffs could have chosen to bring their claims in
federal court. Thus, section 1446(b) (3) does not apply.
FCA argues that the cases cited by plaintiffs are foreign to
this jurisdiction and should not be considered authoritative,
although it relies upon two such cases to support its position.
FCA overlooks that removal statutes are to be strictly construed
against removal and for remand. Bosky v. Kroger Texas, L.P., 288
F.3d 208, 211 (5th Cir. 2002). The failure to obtain the consent
of ZF to the removal created a procedural, not a substantive,
roadblock to removal. See Pike County v. Aries Bldg. Sys., LLC,
No. 5:17-CV-17-DCB-MTP, 2017 WL 1737722, at *2
(S.D. Miss. May 3,
2017) . The dismissal of the claims against ZF did not create
jurisdiction where it had not previously existed.
The court ORDERS that plaintiffs' motion to remand be, and
is hereby, granted, and this action be, and is hereby, remanded
to the state court from which it
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