United States District Court, E.D. Louisiana
ORDER AND REASONS
filed a motion to remand the above-captioned matter to state
court. Rec. Doc. 3. Defendants timely filed an opposition.
Rec. Doc. 5. The Court then ordered the parties to file
supplemental memoranda relative to pre-removal service of
process issues. Rec. Doc. 6. The parties timely complied.
Rec. Docs. 7; 8.
reasons discussed below, IT IS ORDERED that the motion to
remand (Rec. Doc. 3) is DENIED.
was originally a wrongful death action brought by Lucy
Crockett, daughter of decedent Vallory Crockett, in Louisiana
state court on October 14, 2016. See Rec. Doc. 1-1
at 1-8. Vallory Crockett was an inmate at the Louisiana
Correctional Institute for Women from 1979 until 1983.
See Id. at 2. In May 1983, Vallory Crockett escaped
from custody and was never apprehended. See Id.
Because authorities did not mount a rigorous search for
Vallory Crockett and returned her belongings to her family
the day after she purportedly escaped, Vallory Crockett's
family alleges that she actually died in
custody. See Id. The original petition
includes two negligence counts against the Louisiana
Correctional Institute for Women and the Louisiana Department
of Corrections. See Id. at 1-3. All parties agree
that no defendants were cited or served the original
petition, which is consistent with the absence of any proof
of service in the record. See Rec. Docs. 1 at 1; 3-1
at 2; 7 at 2-3.
8, 2017, Plaintiffs amended their petition, creating on their
own initiative the instant grounds for removal. See
Rec. Doc. 1-1 at 32. In addition to the two negligence claims
alleged in the original petition, Plaintiffs incorporated
three new state law claims, two claims under the Fourth and
Eighth Amendments to the United States Constitution, and
three claims under 42 U.S.C. §§ 1983, 1985, and
1986. See Rec. Doc. 1-1 at 32. The amended petition
also added the Louisiana Office of Risk Management as a
defendant. See Id. at 33. The motion to amend
Plaintiffs' petition was served on the Louisiana
Department of Justice on June 27, 2017, the Louisiana
Correctional Institute for Women on June 21, 2017, the
Louisiana Department of Public Safety and Corrections on June
20, 2017, and the Louisiana Office of Risk Management on June
20, 2017. See Rec. Docs. 1 at 2-3; 1-1 at 37-40; 7
at 3-6; 8 at 2. No. citation was served on any Defendant when
Plaintiffs amended their petition. See Rec. Doc. 8
Plaintiffs' motion, the Louisiana state court entered
preliminary default against the Louisiana Correctional
Institute for Women, Louisiana Department of Corrections,
Louisiana Office of Risk Management, and Louisiana Department
of Justice on September 7, 2017. See Rec. Doc. 1-1
at 41. The default judgments were served on the Louisiana
Department of Justice on September 18, 2017, on the Office of
Risk Management on September 19, 2017, and on the Louisiana
Correctional Institute for Women on September 26, 2017.
See Rec. Doc. 1-1 at 47, 48, 60. Defendants answered
Plaintiffs' supplemental petition on October 2, 2017.
See Id. at 49-59.
filed a notice of removal on October 5, 2017. See
Rec. Doc. 1. Defendants asserted that removal was proper on
the basis of federal question and supplemental jurisdiction.
See Id. at 4. Defendants further maintained that
removal was timely because no defendant was ever properly
served. See Id. at 3-4. On November 3, 2017,
Plaintiffs moved to remand the case. See Rec. Doc.
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or defendants, to the district
court of the United States for the district and division
embracing the place where such action is pending.” 28
U.S.C. § 1441(a). “[A]ll defendants who have been
properly joined and served must join in or consent to the
removal of the action.” Id. §
1446(b)(2)(A). A “defendant's time to remove is
triggered by simultaneous service of the summons and
complaint, or receipt of the complaint, through service or
otherwise, after and apart from service of the summons, but
not by mere receipt of the complaint unattended by any formal
service.” Murphy Bros., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 347-48 (1999).
“[I]f the case stated by the initial pleading is not
removable, ” a defendant's time to remove begins
upon “receipt . . ., through service or otherwise, of a
copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one
which is or has become removable.” 28 U.S.C. §
the case stated in the original petition was not removable
because there was neither diversity nor a federal question.
See Rec. Doc. 1-1 at 1-8. However, Defendants
subsequently received copies of Plaintiffs' motion to
amend their petition, which clearly indicate that the case is
removable because of federal question jurisdiction.
See Rec. Docs. 1 at 2-3; 1-1 at 32-40; 7 at 3-6; 8
at 2. If Defendants had been formally served with process
when they received the motion to amend, the thirty-day
removal clock would have started to run. See 28
U.S.C. § 1446(b)(3); Morgan v. Huntington Ingalls,
Inc., 879 F.3d 602, 612 (2018); Trahant v. Metro.
Prop. & Cas. Ins. Co., No. 00-2579, 2000 WL 1473598,
at *2 (E.D. La. Oct. 3, 2000). But if Defendants had not been
formally served with process when they received the motion to
amend, and provided no timely record evidence of waiver of
service, the removal clock would not have started to run
because “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.,
526 U.S. at 347-48). “A defendant has no obligation to
appear in court or defend an action before it is
formally served with process directing it to appear before
that forum.” Id. (citing Murphy
Bros., 526 U.S. at 347-48). Because Defendants received
Plaintiffs' motion to amend in June 2017, and were
therefore on notice that the case was removable, the relevant
question at this juncture is when, if ever, Defendants were
formally served with process.
assessing whether removal was timely, the questions of if and
when service occurred are questions of state
See Thompson, 775 F.3d at 304. In
Louisiana, it is generally true that “[c]itation and
service thereof are essential in all civil actions . . . [;]
[w]ithout them all proceedings are absolutely null.”
La. Code. Civ. Proc. art. 1201. A citation is a document,
signed by the clerk of the issuing Louisiana state court,
containing the following information:
(1) The date of issuance; (2) The title of the cause; (3) The
name of the person to whom it is addressed; (4) The title and
location of the court issuing it; and (5) A statement that
the person cited must either comply with the demand contained
in the petition or make an appearance, either by filing a
pleading or otherwise, in the court issuing the citation
within the [specified] delay . . . under penalty of default.
La. Code. Civ. Proc. Art. 1202. When served, the citation
“must be accompanied by a certified copy of the
petition . . . .” Id.
statutes provide more specific guidance about service in
cases like this one where a plaintiff brings a tort claim
against the state or a state department. See La.
Stat. §§ 13:5107, 39:1538. Section 1538 requires
that “process” “be served upon the head of
the department concerned, the office of risk management, and
the attorney general.” Section 5107 requires
“citation and service” on the Louisiana attorney
general or director of the state department being sued.
See La. Stat. § 39:1538(A); Whitely v.
State ex rel Bd. of Supervisors, 2011-0040, pp.
5-13 (La. 7/1/11); 66 So.3d 470, 473-79; Burnett v. James
Constr. Grp., 2010-2608, pp. 2-5 (La. 7/1/11); 66 So.3d
482, 483-85. Section 5107 also states that a plaintiff must
request service of citation on the attorney general within
ninety days of filing suit and the state department being
sued is not required to file responsive pleadings until it
has actually been served. See La. Stat. §
never fully perfected service under Louisiana state law. But
contrary to Defendants' repeated assertions, Plaintiffs
did not err by serving process on incorrect entities. See
Whitely, 66 So.3d at 473-79. Plaintiffs served the
motion to amend their petition on the state departments being
sued (the Louisiana Correctional Institute for Women and the
Louisiana Department of Safety and Corrections), the
Louisiana attorney general, and the Louisiana Office of Risk
Management. See Rec. Doc. 1-1 at 37-40. Instead, as
Plaintiffs acknowledge in their supplemental memorandum, the
problem is that no defendant was served a citation for the
initial or amended petitions. See Rec. Doc. 8 at 2.
Absent service of citation, service was not perfected.
See La. Code. Civ. Proc. art. 1201; Scullin v.
Prudential Ins. Co., 421 So.2d 470, 472 (La. Ct. App.
1982) (holding that service had not been perfected because
defendant was never served a citation even though defendant
had “actual knowledge” of the lawsuit from