United States District Court, E.D. Louisiana
June 10, 2015
JACQUELINE GROVES, Plaintiff,
JONATHAN PAUL FARTHING, et al., SECTION
SUSIE MORGAN, District Judge.
Before the Court are two motions: (1) a motion to remand to state court filed by Plaintiff Jacqueline Groves and (2) a motion for leave to conduct a deposition related to the pending motion to remand filed by Defendants Amica Mutual Insurance Company and Amica General Agency, LLC ("Amica"). For the following reasons, both motions are DENIED.
On February 13, 2015, Plaintiff Jacqueline Groves filed a petition for damages in Orleans Parish Civil District Court alleging she suffered severe injuries, including but not limited to a fractured pelvis and a traumatic brain injury, after Defendant Jonathan Paul Farthing, an uninsured driver operating a motorcycle, struck Plaintiff while she was riding a bicycle. Plaintiff named Farthing and Amica, Plaintiff's alleged uninsured/underinsured motorist insurance coverage provider, as defendants.
On March 5, 2015, Amica filed a notice of removal in the U.S. District Court for the Eastern District of Louisiana, invoking the Court's subject-matter jurisdiction based on diversity of citizenship. On April 2, 2015, Plaintiff filed a motion to remand the case to Orleans Parish Civil District Court,  and Amica filed a motion on April 29, 2015 for leave to conduct a deposition related to the motion to remand.
LAW AND ANALYSIS
Federal courts are courts of limited jurisdiction and possess only the authority conferred upon them by the United States Constitution or by Congress. Federal law allows for state civil suits to be removed to federal courts in certain instances. Generally, removal jurisdiction is governed by 28 U.S.C. § 1441(a), which provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
In this case, Amica invoked the Court's diversity jurisdiction when removing this action to federal court. Section 1441(b)(2) limits removal jurisdiction in diversity cases. When removal is based on diversity jurisdiction, the action "may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." This limitation is often referred to as the "forum defendant rule." The Fifth Circuit has held that failure to comply with the forum defendant rule renders removal procedurally defective rather than jurisdictionally defective. Thus, to determine whether removal is proper when original jurisdiction is based on diversity and a forum defendant is named, the Court must undertake a twostep analysis: (1) jurisdictionally, the parties must be completely diverse and the amount-in-controversy requirement must be met, and (2) procedurally, no named defendants served prior to removal may be citizens of the forum state.
In this case, the first prong clearly is satisfied. Diversity jurisdiction exists as the parties are completely diverse and the amount-in-controversy requirement is met. Plaintiff argues, however, the Court must remand this case for failure to satisfy the second prong of the test because Defendant Farthing is a citizen of Louisiana-the forum state-and he was served prior to removal. Thus, to conclude whether the second prong of the test is met, the Court must determine (1) when the case was removed to federal court, and (2) whether Farthing was served prior to that time.
When Was the Case Removed to Federal Court?
Under 28 U.S.C. § 1446(a), defendants seeking to remove a civil action from state court must file in the federal district court "a notice of removal... containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such... defendants in such action." Section 1446(b) provides the time period during which a notice of removal must be filed and further states that "[w]hen a civil action is removed 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." Most importantly for our purposes, § 1446(d) provides:
Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
Amica argues this case was removed on March 5, 2015 at 1:21 p.m. when the notice of removal was filed in the federal district court. Attached to the notice of removal is a "Certificate of Compliance with Requirement to Give Notice of Removal" in which Amica certifies that, in compliance with 28 U.S.C. § 1446(d), a copy of the notice of removal had been filed with the clerk of the state court prior to the filing with this Court and written notice of the removal also had been given to all parties in the action. Plaintiff does not dispute that by March 5, 2015 at 1:21 p.m. the notice of removal had been filed in federal court and a copy of the notice of removal had been filed with the clerk in state court.
Plaintiff argues this case was not removed until March 10, 2015, the day when her attorney received written notice of removal in the mail, because only then did removal become effective. Plaintiff states: "The Fifth Circuit has interpreted 28 U.S.C. § 1446(d) to mean that removal is not effective until the removing defendant has taken the three distinct steps required by 28 U.S.C. § 1446(d)." For this reason, Plaintiff asserts this case was not removed until (1) the notice of removal was filed with federal court, (2) a copy of the notice of removal was filed with the clerk of the state court, and (3) written notice of removal was received by Plaintiff on March 10, 2015.
Plaintiff cites only one case, Stephens v. Portal Boat Co ., to support her contention that 28 U.S.C. § 1446(d) requires all three steps be completed, including the requirement that written notice of removal be given to all adverse parties, before removal is effected. But the validity of the removal from state court to federal court was not being challenged in Stephens. Instead, the appeal involved a district court's dismissal on jurisdictional grounds of a state taxpayer's action challenging the imposition of certain state taxes. The Fifth Circuit in Stephens affirmed the district court's dismissal for lack of jurisdiction. The Fifth Circuit mentioned in its recitation of the facts that Portal did not advise the state court of the removal and commented in a footnote that the appellant's contention the state court had lost jurisdiction by virtue of the removal "was erroneous; a removal is not effective until notice is given to the state court." Whether the state court had received notice of the removal at the time the notice of removal was filed in federal court is not in dispute in the case now before the Court. Instead, the issue in the instant case is whether a removing defendant must also give written notice of removal to all adverse parties before the removal is effective. This issue is not addressed in Stephens.
This Court's research has not revealed any Fifth Circuit case law on point. Indeed, district courts around the country appear divided on this issue. Some courts in this district have cited two Fifth Circuit cases, Murray v. Ford Motor Co. and Butler v. King, for the proposition that all three elements of § 1446(d) must be met before removal is effected,  but this is not the true holding of either Murray or Butler.  Neither was the precise issue facing this Court, whether written notice must also be given to adverse parties before removal is effected, squarely presented in those cases. Instead, most cases have focused on the time when state courts are divested of jurisdiction and federal courts are vested with exclusive jurisdiction based on the timing of the state court's actual or constructive notice of removal.
Section 1446(d) requires only that the removing defendant give written notice to adverse parties "promptly after" filing a notice of removal in federal court-there is no specific time period provided in the statute. Prompt written notice is a procedural requirement under § 1446(d), and courts may remand an action if prompt written notice has not been given to all adverse parties. Courts look to the circumstances in a particular case to determine whether there was undue delay in notifying all adverse parties. In this case, Plaintiff has not alleged that the written notice of removal was unduly delayed or never received. Rather, Plaintiff admits her attorney received notice by certified mail five days after the notice of removal was filed. Because prompt written notice of removal was given, this procedural requirement has been met and remand of this action is not warranted on this ground.
Amica filed the notice of removal in federal court on March 5, 2015 at 1:21 p.m., and Amica certifies that the state court had actual notice of the removal at that time. Plaintiff has not disputed this. The Court holds that receipt of written notice of the removal by all adverse parties was not required before the removal became effective. Thus, the Court finds this case was removed effective March 5, 2015 at 1:21 p.m.
When Was Farthing Served?
Now that the time of removal has been determined, the remaining issue is whether Farthing-the only forum defendant-was properly served prior to the removal. The forum defendant rule precludes removal "if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Plaintiff argues the time of day process was served on Farthing is irrelevant so long as service was made the same day as removal.
Amica's opposition to Plaintiff's motion to remand asserts that the deputy who served Farthing "has indicated verbally that he served Farthing in the evening of March 5, 2015. However, [the Sheriff's Office] will not allow the deputy to provide a sworn affidavit." For this reason, Amica filed a motion for leave to conduct a discovery deposition in order to establish the exact time of service on Farthing. However, Plaintiff does not contest Amica's contention that Farthing was served on the same day but after the notice of removal was filed. Because the parties do not dispute that Farthing was served the evening of March 5, 2015, after the notice of removal was filed in federal court and a copy was filed in state court, the deposition of the process server is unnecessary, and the motion for leave to conduct the deposition is denied.
In support of her argument that the time of day of service is irrelevant, Plaintiff points only to the Louisiana Code of Civil Procedure, which requires a sheriff's return show the date and method of service-but not the time of service. Plaintiff cites no case law to support her contention that for purposes of removal the time of service on the forum defendant is irrelevant so long as service was made the same day as the removal. On the other hand, Amica cites a case holding that, even though a case was removed just three hours before a forum defendant was served, the mere fact removal took place before service on the forum defendant was sufficient grounds for denying a motion to remand.
As with any statutory question, the Court must begin with the language of the statute. "In determining a statute's plain meaning, [the courts are to] assume that, absent any contrary definition, Congress intends the words in its enactments to carry their ordinary, contemporary, common meaning." The Court finds the statutory language of § 1441(b) is not ambiguous. A forum defendant must be "joined and served " before removal in order for the forum defendant rule to preclude removal. It makes no difference whether removal and service on the forum defendant occur on the same day. So long as removal is effected before service, the forum defendant rule will not preclude removal. It is not this Court's place to substitute its judgment for that of Congress when the plain meaning of § 1441(b) compels one conclusion.
Farthing, the Louisiana defendant, was not properly joined and served at the time Amica removed this action. Accordingly, § 1441(b) does not provide a procedural basis to remand this action. Likewise, Farthing's consent to removal was not necessary for removal because he had not yet been served.
Plaintiff argues Amica's attempts to circumvent the forum defendant rule should not be allowed because the concern of local bias is not an issue when a defendant is a citizen of the forum state, even when the forum defendant was served after removal. Notwithstanding Plaintiff's persuasive policy arguments, remand would be contrary to the unambiguous language of § 1441(b) and would effectively read out the "and served" portion of the statute. This the Court will not do.
Because Amica complied with the procedural requirements in § 1446, removal of the action from state court to federal court took place on March 5, 2015 at 1:21 p.m., before Farthing-the forum defendant-was served that evening. Based on a plain reading of § 1446, Amica was not precluded from removing this action as the forum defendant Farthing was served after the case was removed. Accordingly, Plaintiff's motion to remand based on the forum defendant rule must be denied.
IT IS ORDERED that the motion to remand to state court filed by Plaintiff Jacqueline Groves is DENIED.
IT IS FURTHER ORDERED that the motion for leave to conduct a deposition related to the pending motion to remand filed by Defendants Amica Mutual Insurance Company and Amica General Agency, LLC is DENIED.