United States District Court, E.D. Louisiana
JENAY BIGNAR, et at.
SENTRY SELECT INSURANCE CO., et at.
ZAIENEY UNITED STATES DISTRICT JUDGE
Before the Court is a Motion to Remand to State Court (Rec.
Doc. 7) filed by Plaintiffs. Defendant CTB Transportation,
Inc. opposes the Motion. (Rec Docs. 8). Defendants Sentry
Select Insurance Company and Progressive Paloverde Insurance
Company join CTB's opposition. (Rec. Docs. 9, 10). The
Motion, set for submission on May 3, 2017, is before the
Court on the briefs without oral argument.
January 11, 2017, Plaintiffs, Jenay Bignar, Alexandra Faciane
and Taylor Erdely, filed suit in the 21st Judicial District
Court for the Parish of Tangipahoa, Louisiana, against Sentry
Select Insurance Company, CTB Transportation, Inc., Isidro
Montalvo, Contender Truck Lines and Progressive Paloverde
Insurance Company seeking damages for injuries sustained as a
result of an automobile collision that occurred on February
7, 2016. On February 24, 2017, Defendants Sentry Select
Insurance Company and CTB Transportation, Inc. filed a Notice
of Removal, removing the matter from the 21st JDC to this
Court based on diversity jurisdiction. (Rec. Doc. 1).
Plaintiffs now seek remand of this matter, arguing that the
removal was procedurally defective. (Rec. Doc. 7).
seek remand of this matter to state court arguing that
Defendants' removal to this Court was improper because
Isidro Montalvo and Contender Truck Lines had been properly
served but did not join in the removal or timely file a
written consent to the removal. (Rec. Doc. 7). Defendants
argue that removal was proper because at the time of the
removal, Defendants Isidro Montalvo and Contender Truck Lines
had not been properly joined and served under Louisiana's
Long-Arm statute. (Rec. Doc. 8).
28 U.S.C. § 1446(b), a notice of removal must be filed
within 30 days of the defendant being served or otherwise
receiving the copy of the first pleading which is removable.
When there are multiple defendants and pursuant to a 2011
statutory amendment adopting the last-served rule, §
1446(b) states that each defendant has “30 days after
receipt by or service on that defendant of the initial
pleading or summons ... to file the notice of removal.”
28 U.S.C. § 1446(b). Additionally, the rule of unanimity
states that “all defendants who are properly joined and
served must join in the removal petition, and that failure to
do so renders the petition defective.” Getty Oil
Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 (5th
Cir. 1988). All served defendants must join in the petition
for removal by providing “some timely filed written
indication” of consent on which the court could
“bind the allegedly consenting defendant.”
Id. at 1262-63. If consent of all served defendants
is not timely obtained, the removal is procedurally defective
and remand of the matter is warranted. Doe v.
Kerwood, 969 F.2d 165, 167-69 (5th Cir. 1992).
assert that removal was improper because at the time of
removal, Defendants Isidro Montalvo and Contender Truck Line
were served properly under Louisiana's Long-Arm statute
because Plaintiffs mailed both Defendants through certified
mail. Thus, Plaintiffs assert that Montalvo and
Contender Truck Line were required either to join in the
removal or consent to the removal. Defendants argue that the
concurrence of Montalvo and Contender Truck Line was not
required because the rule of unanimity is only triggered when
an affidavit of service is filed, arguing that the filing of
an affidavit of service is a procedural requirement under
Louisiana's Long-Arm statute. Defendants base their
argument on LSA-R.S. 13:3205, which states that:
No default judgment can be rendered against the defendant and
no hearing may be held on a contradictory motion, rule to
show cause, or other summary proceeding, except for actions
pursuant to R.S. 46:2131 et seq., until thirty days after the
filing in the record of the affidavit of the individual who
(1) Mailed the process to the defendant, showing that it was
enclosed in an envelope properly addressed to the defendant,
with sufficient postage affixed, and the date it was
deposited in the United States mail, to which shall be
attached the return receipt of the defendant; or
(2) Utilized the services of a commercial courier to make
delivery of the process to the defendant, showing the name of
the commercial courier, the date, and address at which the
process was delivered to the defendant, to which shall be
attached the commercial courier's confirmation of
(3) Actually delivered the process to the defendant, showing
the date, place, and manner of delivery. LSA-R.S. §
United States District Court for the Western District of
Louisiana has found “that 13:3205 is not applicable to
the validity of service of process.” Kroger Co. v.
Door Control Services, Inc., 2012 WL 4891560, at *5
(W.D. La. 2012). In contrast, the Western District of
Louisiana has also found that “for purposes of
satisfying the rule of unanimity … the non-removing
defendants are not required to consent to or join the removal
petition until proof of service is filed in the
record.” Cooper v. Sentry Select Ins. Co.,
2008 WL 4610235, at *2 (W.D. La. 2008). The United States
District Court for the Middle District of Louisiana has noted
that there are “ambiguities in the controlling law,
” which should be resolved in ...