United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court is a Motion to Remand to State Court (Rec.
Doc. 5) filed by Plaintiff Clinton Crowe
(“Crowe”). Defendant State Farm Mutual Automobile
Insurance Company (“State Farm”) opposes the
motion. (Rec. Doc. 6). The motion, set for submission on
January 24, 2018 is before the Court on the briefs without
oral argument. Having considered the motion and memorandum of
counsel, the record, and the applicable law, the Court finds
that the Plaintiff's motion should be
GRANTED for the reasons set forth below.
to his Petition, on March 17, 2017, plaintiff Clinton Crowe
(“Crowe”) was riding in a 2016 Chrysler Town
& Country driven by Deanna Gregg when defendant Corey
Amos collided with the rear of the Chrysler in the left lane
of Interstate 10 in Jefferson Parish, Louisiana. (Rec. Doc.
1-5). As a result of the accident, Crowe alleges to have
sustained serious injuries to his neck and back, together
with past and future mental anguish and physical suffering;
and past and future loss of enjoyment of life.
October 18, 2017, Plaintiff Clinton Crowe filed suit in Civil
District Court for the Parish of New Orleans seeking
compensation for damages sustained from the accident. (Rec.
Doc. 6-1, p. 2). In addition to naming Amos, Crowe named
State Farm as a defendant alleging that at the time of the
accident, there was in full force and effect an insurance
policy issued by State Farm whereby State Farm agreed to
defend and indemnify Amos. Additionally, Crowe named American
Service Insurance, Inc. (“American Service”) as a
defendant alleging that at the time of the accident, there
was an insurance policy in effect issued by American Service
whereby American Service agreed to provide
uninsured/underinsured motorist coverage to Crowe. In his
Petition, Crowe alleges that the evidence will reflect that
State Farm's primary insurance policy in favor of Amos
will be insufficient to satisfy the amount of damages being
sought by Crowe. For that reason, Crowe alleges that Amos is
an underinsured motorist pursuant to the terms of Crowe's
policy with American Service. Crowe seeks to be compensated
for damages that exceed the State Farm policy limit via the
policy issued by American Service.
filing in state court on October 18, 2017, State Farm (and
Amos) removed the case from state court to this
Court. State Farm removed this action pursuant to
28 U.S.C. 1441(a) alleging that this is a matter in which
this Court has original diversity jurisdiction under 28
U.S.C. § 1332. (Rec. Doc. 1, p. 5). State Farm alleges
that this is a civil action wherein the amount in controversy
exceeds $75, 000.00, exclusive of interests and costs, and
this suit is between citizens of different states, and is
therefore removable. Id. As the removing party,
State Farm was required to comply with 28 U.S.C. § 1446,
which provides the procedural requirements for the removal of
parties spend the bulk of their memoranda debating the
jurisdictional requirements of complete diversity and amount
in controversy. However, as an initial matter, the Court
finds that there is a procedural defect in the removal
process. The parties provide only a cursory analysis of
whether co-defendant American Service timely consented to the
removal of this action. This issue warrants a more in-depth
Law and Analysis
defendant may remove an action from state court to federal
court, provided the action is one in which the federal court
may exercise original jurisdiction. Ross v. USA
Football, 17-138, 2017 WL 695399 (E.D. La. 2017)
(citing 28 U.S.C. § 1441(a); Manguno v.
Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002)). The removing defendant bears the burden of
ensuring compliance with the procedural requirements of
removal. Id. (citing Manguno, 276 F.3d at
723). The removal statutes are strictly construed in favor of
Fifth Circuit has long held that all properly joined and
served defendants must join in the notice of removal or
otherwise consent to removal within the 30 day period set
forth in 28 U.S.C. § 1446(b). Id. (citing
Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co. of
North America, 841 F.2d 1254, 1262 (5th Cir. 1988);
Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir.
1986); Davis v. City of Shreveport Police Dept., No.
12-0918, 2012 WL 4189511, *2 (W.D. La. 2012)). While each
defendant need not sign the notice of removal, there must be
“some timely filed written indication from each served
defendant, or from some person or entity purporting to
formally act on its behalf in this respect to have the
authority to do so, that it has actually consented to such
action.” Id. (citing Gillis v.
Louisiana, 294 F.3d 755, 759 (5th Cir. 2002)).
“Failure to comply with the thirty-day time limitation
or with the unanimity requirement renders the removal
procedurally defective.” Id. (citing Jones
v. Scogin, 929 F.Supp. 987, 988 (W.D. La. 1996)).
the 2011 amendment to the federal removal statute, the
deadline to file a notice of removal runs from the service of
each defendant. 28 U.S.C. §§ 1446(b)(2)(B)-(C).
Prior to that amendment, the Fifth Circuit had followed the
first-served defendant rule, under which a defendant was
required to join in removal within thirty days of the date
the first defendant was served. See Getty, 841 F.2d
at 1262-63. Thus, Getty is legislatively overruled
by § 1446(b)(2) to the extent that earlier-served
defendants may join in removal by later-served defendants who
remove within their own individual statutory thirty-day
removal period. Gibbs v. Ocwen Loan Svcg., LLC, 2014
WL 2767206, *3 (N.D. Tex. 2014). However, any differences in
the deadline between last-served and first-served defendants
are irrelevant to this case, where the defendants were served
on the same date. Both State Farm and American Service were
served with the state court Petition on November 2, 2017, and
thus, had 30 days from that date to remove or consent to
removal. (Rec. Doc. 5-1. p.1 n. 1).
is no dispute State Farm timely removed this matter under the
time constraints provided by 28 U.S.C. 1446(b)(1). Under that
provision, State Farm had 30 days, after receiving service of
Crowe's initial pleading upon which this action is based,
in which to file its Notice of Removal of this civil action.
The parties agree that State Farm's first notice of the
filing of Crowe's Petition was on November 2, 2017, when
its legal agent for service of process was served with a copy
of the Petition. Therefore, State Farm had 30 days from
November 2, 2017 in which to file a Notice of Removal with
this Court. State Farm did so by filing its Notice of Removal
on November 30, 2017. Further, the record indicates that
American Service was also served on November 2, 2017. Because
American Service was also served on November 2, 2017, it had
30 days from that date by which to consent to removal. The
record does not indicate that American Service filed any
pleading consenting to removal within this 30 day period.
the manner in which American Service consented to
removal-supposedly given verbally to State Farm-is defective.
The Fifth Circuit makes clear that the removing defendant
must do more than merely state that another served defendant
consents to removal in its notice of removal filed in federal
court. Getty Oil, 841 F.2d at 1262 n. 11;
Jones, 929 F.Supp. at 988; Thompson v.
Louisville Ladder Corp., 835 F.Supp. 336, 337 n. 3 (E.D.
December 28, 2017, Crowe filed this Motion to Remand on the
basis that not all served defendants consented to removal,
and that State Farm failed to prove by a preponderance of the
evidence that this case involves diverse citizens and an
actual amount in controversy in excess of $75, 000.00. (Rec.
Doc. 5-1, p. 1) State Farm filed an opposition on January 5,
2018. In response to Crowe's argument that State Farm
removed the case without the consent of all defendants, State
Farm alleges that at the time the Notice of Removal was
filed, no attorney for American Service Insurance, Inc. had
yet made an appearance. (Rec. Doc. 6-1, p. 2). Therefore,
State Farm was allegedly unable to contact counsel for
American Service to obtain their consent for removing. State
Farm then alleges that when examining the state court record
in preparation of filing its opposition to the Motion to
Remand, counsel for State Farm discovered that ...