Paragon Tank Truck Equipment, LLC v. Parish Truck Sales, Inc. et al

Filing 46

ORDER denying 23 Motion to Remand to State Court. Defendant may have until 6/27/14 to file an amended notice of removal. Signed by District Judge William M. Conley on 6/17/14. (rep)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

PARAGON TANK TRUCK
EQUIPMENT, LLC,
Plaintiff,

ORDER

v.
14-cv-069-wmc
PARISH TRUCK SALES, INC. and
VACZILLA TRUCKING, LLC,
Defendants.

In this civil action, plaintiff Paragon Tank Truck Equipment, LLC (“Paragon”) brings
claims for breach of contract and conversion, alleging that defendant Parish Truck Sales,
Inc. (“Parish Truck”) took possession of, but did not pay for, tank trailer parts and
accessories.

While Paragon filed the original suit in the Circuit Court for the State of

Wisconsin, Dane County on January 8, 2014, Parish Truck filed a notice of removal on
February 4, 2014, alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).

On

February 20, 2014, the court concluded that Parish Truck’s notice of removal was defective
and ordered it to submit an amended notice properly alleging the parties’ citizenship.
(Opinion & Order (dkt. #8).)

In accordance with that order, Parish Truck filed an

amended notice of removal on March 4, 2014. (See dkt. #14.)
On March 7, 2014, Paragon objected to the amended notice and subsequently filed a
formal motion to remand. (Dkt. #23.) In support, Paragon argues that: (1) co-defendant
Vaczilla Trucking, LLC (“Vaczilla”) did not consent to the removal as required by 28 U.S.C.
§ 1446(b)(2)(A); (2) the notice of removal was untimely; and (3) Parish Truck’s allegations
of citizenship cannot be assessed for their accuracy.

Section 1446(b)(2)(A) requires that “all defendants who have been properly joined
and served must join in or consent to the removal of the action.” Here, both the notice of
removal and the amended notice states that Parish Truck contacted Vaczilla’s principal,
Rocky Ditcharo, who indicated that he and Vaczilla consented to the removal.

In its

motion to remand, Paragon represents that its attorney later contacted Ditcharo and was
told that Ditcharo had not given Parish Truck permission to consent on his behalf. There is
no need to resolve this apparent factual dispute, however, since the notice suffers from a
more basic flaw. In the Seventh Circuit, a statement that all defendants consent is not
sufficient for the purposes of section 1446(b)(2)(A); a petition for removal requires that all
defendants support the petition in writing. See Roe v. O’Donohue, 38 F.3d 298, 301 (7th Cir.
1994), abrogated on other grounds by Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.
344 (1999).
Since no one claims that Vaczilla gave written consent, the notice would appear
defective – unless, of course, Vaczilla need not have consented at all to the notice of
removal because it had not yet been served, as required by the plain language of the statute.
See P. P. Farmers’ Elevator Co. v. Farmers Elevator Mut. Ins. Co., 395 F.2d 546, 547-48 (7th
Cir. 1968). Here, Paragon admits in its motion to remand that Vaczilla was not served
until February 12, 2014, eight days after the original notice of removal was filed. (See Mot.
Remand (dkt. #23) 2.) Moreover, the record makes clear that Paragon’s representation is
accurate. (See dkt. #24-2 (proof of service on Vaczilla dated Feb. 12, 2014 at 1:50 P.M.).)

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There was, therefore, no need for Vaczilla to consent to the removal, rendering any question
of an improper consent moot.1
There is still the problem that Paragon’s notice and amended notice of removal fails
to plead that Vaczilla had not yet been served, but this flaw, too, is not fatal. “When the
state court record reveals a jurisdictional fact, albeit imperfectly stated, which is essential to
removal and which has been omitted from the four corners of the removal petition, an
amendment of the petition is permissible to correct the defect.” N. Ill. Gas Co. v. Airco
Indus. Gases, a Div. of Airco, Inc., 676 F.2d 270, 274 (7th Cir. 1982). Accordingly, it seems
appropriate for the court to grant leave to amend the removal petition to explain why
Vaczilla’s proper consent was not required for removal purposes.2
Next, Paragon argues that the amended notice of removal is untimely. A notice of
removal must be filed within thirty days of a defendant’s receipt of a copy of the initial
pleading. 28 U.S.C. § 1446(b)(1). Here, Parish Truck received a copy of the complaint via
Paragon’s objection might be relevant if, once properly served, Vaczilla had to consent to the
removal after the fact, but Paragon neither offers authority for this proposition nor even advances
such an argument. Moreover, the court has found no support for Paragon’s position. On the
contrary, the only cases the court has found on this point support the opposite proposition. See
Lewis v. Rego Co., 757 F.2d 66, 69 (3d Cir. 1985) (“the removal statute contemplates that once a case
has been properly removed the subsequent service of additional defendants who do not specifically
consent to removal does not require or permit remand on a plaintiff’s motion”); Diversey, Inc. v.
Maxwell, 798 F. Supp. 2d 1004, 1005-06 (E.D. Wis. 2011) (defendant properly amended notice of
removal to indicate other defendants had not yet been served and did not need to consent; there was
no requirement that defendants consent after being served) (citing Lewis, 757 F.2d at 69). Instead of
requiring each defendant’s consent after the fact, the Eastern District held in Diversey that an
unserved defendant “retains the right to veto the removal by moving to remand once he is served
with process and makes an appearance in the case,” pursuant to 28 U.S.C. § 1448. 798 F. Supp. 2d
at 1006. Since these issues are not properly before the court, however, the court expresses no
opinion.
2
The court also suspects that Vaczilla, as a “third party payee” against whom Paragon has not
actually asserted any claims, is a nominal party, which would similarly obviate the need for its
consent. See N. Ill. Gas Co., 676 F.2d at 272 (“Nominal parties, however, are disregarded for
removal purposes and need not join in the petition.”). Because Parish Truck’s stated grounds for
removal (in the notices) do not make this claim, however, the court will not rely on that basis for
denying the motion to remand.
1

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e-mail on January 8, 2014 (although it was not served until January 28) and filed its notice
of removal in this court on February 4, 2014, within the thirty-day timeframe. (See dkt.
#2.) This complies with the statute. The fact that Parish Truck’s amended notice of removal
was not filed until March 6 is irrelevant: “even after the thirty days [provided by
§ 1446(b)(1)] have elapsed, amendments to correct ‘defective allegations of jurisdiction’ are
permitted under 28 U.S.C. s[.] 1653.”3 N. Ill. Gas Co., 676 F.2d at 273.
Paragon also argues that the amended notice for removal does not contain
documents supporting the new jurisdictional allegations about Vaczilla.

Absent some

evidence that the allegations are in fact untrue, however, the court will not remand on
Paragon’s mere assertion that the notice may have inaccurately described the citizenship of
Vaczilla’s members.

To date, the only “evidence” Paragon has submitted is a business

records search that lists a registered agent of Vaczilla located in Bismarck, North Dakota,
which is wholly immaterial to the allegation that Vaczilla Trucking LLC’s two members are
both individuals domiciled in Louisiana. See Camico Mut. Ins. Co. v. Citizens Bank, 474 F.3d
989, 992 (7th Cir. 2007) (“[T]he citizenship of an LLC is the citizenship of each of its
members.”).
Finally, the amended notice of removal alleges that “it appears the members of
Paragon Tank Truck Equipment, LLC are citizens of the states of Texas, Georgia, and
Wisconsin. There is no indication that Paragon . . . has any members who are citizens of
the State of Louisiana.” This representation arguably falls short of an allegation made in

“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”
28 U.S.C. § 1653.
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good faith, even upon information and belief, but the court will also allow defendants one
more chance to get it right.
Although the court finds Parish Truck’s notice of consent defective, it is not “so
defective as to be incurable.” N. Ill. Gas Co., 676 F.2d at 273 (quoting Kinney v. Columbia
Sav. & Loan Assoc., 191 U.S. 78, 80 (1903)). Therefore, Parish Truck may have 10 days to
cure the defects in its notice of removal. If it successfully does so, the court will then
proceed to take up the pending motion to dismiss for lack of personal jurisdiction. On the
other hand, a failure to meet all of the requirements of an effective notice of removal in this
third attempt will result in summary remand of this case for lack of subject matter
jurisdiction.

ORDER
IT IS ORDERED that:
1) plaintiff Paragon Tank Truck Equipment, LLC’s motion to remand (dkt. #23) is
DENIED;
2) defendant Parish Truck Sales, Inc. shall have until June 27, 2014, to file and
serve an amended notice of removal (1) explaining why Vaczilla’s proper consent
was not required for removal purposes and (2) containing good faith allegations
sufficient to establish complete diversity of citizenship for purposes of
determining subject matter jurisdiction under 28 U.S.C. § 1332; and
3) failure to amend timely shall result in prompt dismissal of this matter for lack of
subject matter jurisdiction.
Entered this 17th day of June, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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