United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
matter comes before the court on a Motion to Remand filed by
the plaintiff, Lisa Nunez. Doc. 13. Through this motion
plaintiff also seeks an award of costs and attorney fees.
Id. The motion is opposed by the defendants. Doc.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of this
court. For the reasons stated below, IT IS
RECOMMENDED that the Motion to Remand be
DENIED and that the request for costs and
attorney fees be DENIED.
January 26, 2016, Nunez filed suit in the 14th Judicial
District Court, Calcasieu Parish, Louisiana, against four
defendants: U.S. Xpress Leasing, Inc. (“Xpress”);
Total Transportation of Mississippi, LLC (“To t a l
”); Wallace Dalton Graham (“Graham”); and
Mountain Lake Risk Retention Group, Inc. (“Mountain
Lake”). Doc. 2, p. 4. She seeks damages arising from an
automobile accident that occurred on October 20, 2015.
Id. Defendants removed the case to this court on
October 16, 2017, on the basis of diversity jurisdiction.
See doc. 1, pp. 4-6. Nunez now seeks remand on
grounds that removal was untimely because defendants failed
to remove until twenty-one months after she filed suit in
violation of the one-year limit on removal under 28 U.S.C.
§ 1446(c). Doc. 13, att. 1, p. 1; Doc. 17, p. 1. She
also demands an award of attorney fees and costs associated
with removal. Doc. 13, att. 1, p. 5.
assert that they timely removed because, among other reasons,
Mountain Lake was never served with the original or amended
petition prior to removal. Doc. 1, pp. 4-5; Doc. 16, p. 7.
They also contend that Nunez should not be awarded attorney
fees and costs because they had objectively reasonable
grounds for removal. Doc. 16, pp. 14-15.
neither diversity nor the amount in controversy is disputed.
See Doc. 1, pp. 4-6; doc. 13, att. 1, p. 2. Thus, we
are left to consider only the timeliness of defendants'
removal, whether plaintiff waived her right to seek remand,
and whether plaintiff should be awarded attorney fees and
costs associated with the removal.
civil action brought in a state court of which the district
courts have original jurisdiction may be removed to the
proper district court. 28 U.S.C. § 1441(a). District
courts have original jurisdiction over all civil actions
between citizens of different states where the amount in
controversy exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(a)(1). The diversity provisions
of 28 U.S.C. § 1332(a)(1) require complete diversity
among the parties. Caterpillar Inc. v. Lewis, 519
U.S. 61, 68 (1996). The removing party bears the burden of
showing that removal was procedurally proper and that federal
jurisdiction exists. See De Aguilar v. Boeing Co.,
47 F.3d 1404, 1408 (5th Cir. 1995).
a defendant must file a notice of removal within thirty days
from the time that it receives an “initial pleading
setting forth the claim for relief … .” 28
U.S.C. § 1446(b)(1). “[A] defendant's right to
removal runs from the date on which it is formally served
with process.” Thompson v. Deutsche Bank Nat'l
Trust Co., 775 F.3d 298, 303 (5th Cir. 2014) (citing
Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 119 S.Ct. 1322, 1325 (1999)). “[T]he Fifth
Circuit has found that the deadlines set forth in 28 U.S.C.
§ 1446 do not limit a defendant's ability to remove
a case before” it has been served with the complaint.
Griffin v. Liberty Mut. Ins. Co., 2015 WL 1132745,
at *3 (W.D. La. 2015) (citing Delgado v. Shell Oil
Co., 231 F.3d 165, 177 (5th Cir. 2000)). A
previously-served defendant may join the removal of an
unserved codefendant “without rendering the removal
untimely, even if” service on the previously-served
defendant occurred more than thirty days prior to removal.
Perez v. Bank of Am., N.A., 2013 WL 5970405, at *3
(W.D. Tex. 2013) (citing Moore v. Svehlak, 2013 WL
3683838, at *15-16 (D. Md. 2013); Wagner v.
Campbell, 2013 WL 2250277, at *1-3 (D. Neb. 2013);
Delgado, 231 F.3d at 177).
case, Mountain Lake asserts that it was never served with
either the original or amended petition. Plaintiff has not
disputed that assertion and the state court record [doc. 2]
does not show that service of either petition was made on
Mountain Lake. Thus, the thirty-day removal period never
began to run against it. Because it was never served,
Mountain Lake was able to remove under 28 U.S.C. §
1446(b) and the other defendants were eligible to join in the
removal. Therefore, defendants timely removed the suit and
plaintiff's motion to remand should be denied.
we decide that the removal was procedurally proper under 28
U.S.C. § 1446(b) we need not reach the other arguments
raised by the parties. For the same reasons that we decide
removal was timely, ...