United States District Court, W.D. Louisiana, Alexandria Division
RUSSELL RIGGS, et al.
CHAMPION TRUCK LINES, L.L.C., et al.
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
filed a Motion to Remand (Doc. 12), alleging removal was
procedurally improper because two Defendants did not consent.
Because removal was procedurally proper, Plaintiffs'
motion (Doc. 12) should be denied.
a personal injury action arising from a motor vehicle
accident between Plaintiff Russell Riggs
(“Riggs”) and Defendant Clifford Phelps
(“Phelps”) (Doc. 1-3). Plaintiffs Russell Riggs
and Ramada Thompson (“Thompson”) (Riggs's
passenger) filed their personal injury action in a state
court against Phelps, Champion Truck Lines, L.L.C. (owner of
the eighteen-wheel truck driven by Phelps), and their
liability insurer, Hallmark Specialty Insurance Co.
(“Hallmark”) (Doc. 1-3). Plaintiffs ask for
general and special damages (Doc. 1-3).
Hallmark removed the case from state court, premising
jurisdiction on diversity (Doc. 1). Plaintiffs filed a Motion
to Remand (Doc. 12).
then filed a Motion for Summary Judgment, denying it had
issued a policy for Champion or Phelps (Doc. 31). Plaintiffs
amended their complaint (Doc. 36), substituting National Fire
and Marine Insurance Co. (“National”) for
Hallmark as liability insurer for Champion and/or Phelps
(Doc. 36). Defendants answered the complaints (Doc. 7, 26,
38, 39, 43).
Law and Analysis
contend the removal was procedurally improper because
Hallmark removed the case without consent of the other
Defendants, Champion and Phelps, as required by 28 U.S.C.
§ 1446 (Doc. 12).
argues Phelps and Champion had not been served when the case
was removed, so their consent was not required (Doc. 1-2).
Fifth Circuit, all served defendants must join in the
petition for removal within thirty days of service on the
first defendant, and if consent of all served defendants is
not timely obtained, the removal is procedurally defective.
See Doe v. Kerwood, 969 F.2d 165, 167, 169 (5th Cir.
1992). This “rule of unanimity” requires that
there 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 and
to have the authority to do so, that it has actually
consented to such action;” each defendant does not need
to sign the notice of removal to effect removal. See
Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254,
1262 n. 11 (5th Cir. 1988); see also Moreno Energy, Inc.
v. Marathon Oil Co., 884 F.Supp.2d 577, 582-83 (S.D.
defendant is free to amend a notice of removal within the
thirty-day period, but once that thirty-day period has
expired, amendment is not available to cure a substantive
defect in removal proceedings. See Moody v. Commercial
Ins. Co. of Newark, N.J., 753 F.Supp. 198,
201-02 (N.D. Tex. 1990); see also Moreno Energy,
Inc., 884 F.Supp.2d at 582.
are three well-recognized exceptions to the rule that all
defendants must join in the removal petitions to effect
removal: (1) where the defendant was not yet served with
process at the time the removal petition was filed; (2) where
a defendant is merely a nominal, unnecessary, or formal
party-defendant; and (3) where the removed claim is a
separate and independent claim under 28 U.S.C. §
1441(c). See Ashford v. Aeroframe Services, L.L.C.,
2015 WL 2089994, *3 (W.D. La. 2015) (citing Jones v.
Houston Independent School Dist., 979 F.2d 1004, 1007
(5th Cir. 1992)); see also, Moreno Energy,
Inc. 884 F.Supp.2d at 582; Moody, 753 F.Supp.
198, 200 (N.D. Tex. 1990).
Hallmark points out, Champion and Phelps had not been served
when Hallmark removed the case. Therefore, Champion and