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Melerine v. Midwest Express Inc.

United States District Court, E.D. Louisiana

April 12, 2017

AMBER E. MELERINE AND ANGELA VALADEZ
v.
MIDWEST EXPRESS, INC., IOBRAHEEM M. ABDELRAHMAN, AND NEW YORK MARINE AND GENERAL INSURANCE, INC.

         SECTION "S" (5)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (Doc. #5) is GRANTED, and this matter is REMANDED to the Thirty-Fourth Judicial District Court, Parish of St. Bernard, State of Louisiana.

         BACKGROUND

         This matter is before the court on plaintiffs' motion to remand. Plaintiffs argue that this matter should be remanded to the Thirty-Fourth Judicial District Court, Parish of St. Bernard, State of Louisiana because the Notice of Removal was untimely filed and not joined by all defendants. Defendants argue that the Notice of Removal was timely filed within 30 days of their receipt of “other paper” from which they could determine that the jurisdictional minimum amount-in-controversy was met, and that Midwest Express, Inc. was not required to consent to removal because it was never properly served.

         On February 24, 2016, plaintiffs, Amber E. Melerine and Angela Valadez, filed this action in the Thirty-Fourth Judicial District Court, Parish of St. Bernard, State of Louisiana seeking damages for injuries and property damage they sustained as the result of an automobile accident. Plaintiffs allege that on March 12, 2015, Melerine was driving a 2011 Chevrolet Tahoe owned by Valadez on highway LA 46 in St. Bernard Parish, Louisiana. Defendant, Iobraheem M. Abdelrahman, was driving a 2007 Volvo tractor trailer owned by defendant, Midwest Express, Inc., and insured by defendant, New York Marine and General Insurance, Inc., on the same highway and tried to make a right turn when he struck the Tahoe's right fender blowing out the vehicle's tire. Plaintiffs allege that Abdelrahman was at fault for the accident. As to damages, Melerine alleges:

That as a direct and proximate result of the above described negligence and resulting collision, [she] has sustained monetary losses in the form of medical bills incurred in her care and treatment including but not limited to past, present and future physical pain and suffering, mental anguish, inconvenience and aggravation, and other out-of-pocket expenses which will be shown at the trial of this matter.
That as a direct and proximate result of the above described negligence and resulting damages, [she], suffered pain, mental anguish and has suffered severe and painful personal injuries, including but not limited to, her left arm, shoulder, ribs, an aggravation to pre-existing conditions, including but not limited to her back, neck and head which has exacerbated her memory loss, numerous contusions, etc. . . . causing her to seek medical attention.

         Plaintiffs allege that Valadez's damages amount to $740.49 for rental car expenses.

         Abdelraham and New York Marine were served with citations and copies of the original petition for damages on February 29, 2016, and March 16, 2016, respectively. A company named Midwest Express, Inc. was served with a citation and a copy of the original petition for damages on February 29, 2016, through its agent M. Ueoka at its office in Ohio. A different company called Midwest Express, Inc., which is organized under the laws of and maintains its principal place of business in Indiana, leased the vehicle and trailer being driven by Abdelraham at the time of the accident. The correct Midwest Express has not appointed M. Ueoka in Ohio as its registered agent for service of process, and has never been served with a citation and copy of the original petition in the matter.

         On February 10, 2017, defendants' counsel wrote to plaintiffs' counsel inquiring whether plaintiffs would stipulate that the damages claimed by each of them do not exceed $75, 000. The letter enclosed a “Binding and Irrevocable Stipulation as to the Amount in Controversy and Waiver[, ]” seeking plaintiffs' affirmation that they would not attempt to recover more than $75, 000 each in this litigation. The letter stated that if plaintiffs did not return the signed stipulation on or before February 15, 2017, defendants would file a Notice of Removal. Plaintiffs did not respond to the letter.

         On February 24, 2017, Abdelrahman and New York Marine removed the action to the United States District Court for the Eastern District of Louisiana. The Notice of Removal stated that, although Midwest Express was not properly served, Midwest Express joined in and consented to the removal without waiving the formal requirements for service of process. The Notice of Removal stated that this court has diversity subject matter jurisdiction under 28 U.S.C. § 1332 because the plaintiffs and defendants are citizens of different states and there is more than $75, 000 in controversy as to Melerine's claims.[1]

         It is uncontested that there is diversity of citizenship. Plaintiffs are citizens of Louisiana. Abdelraham is a citizen of Illinois. New York Marine is a citizen of New York, where it is incorporated and maintains its principal place of business. Midwest Express is a citizen of Indiana, where it is incorporated and maintains its principal place of business. As proof of the amount Melerine's damages, defendants cite the allegations in the complaint and the plaintiffs' failure respond to their request for plaintiffs to sign the “Binding and Irrevocable Stipulation as to the Amount in controversy and Waiver”.

         Thereafter, plaintiffs filed the instant motion to remand arguing that defendants' Notice of Removal was procedurally defective under 28 U.S.C. § 1446(b)(1) and (b)(2)(A) because it was filed more than 30 days after they were served with process and Midwest Express failed to consent to the removal. Defendants argue that the Notice of Removal was timely filed pursuant to 28 U.S.C. § 1446(b)(3) because it was filed within 30 days of plaintiffs' failure to respond to their request for the stipulation, which defendants argues constitutes “other paper” from which they could determine that the ...


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