United States District Court, E.D. Louisiana
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
the Court's diversity jurisdiction, defendants Wal-Mart
Louisiana, LLC and Wal-Mart Stores Inc. (collectively,
“Wal-Mart”) removed this case from the Orleans Parish
Civil District Court to this Court on February 8, 2018.
Plaintiff Judy Lewis-Wallace (“Wallace”) now
moves the Court for a remand. Specifically,
Wallace argues that Wal-Mart's removal was improper for
two reasons: 1) complete diversity does not exist in the
case, and 2) the removal was untimely.
Wallace's arguments fail, this case will remain on the
initiated her case against Wal-Mart in the Orleans Parish
Civil District Court on October 27, 2017. In her petition,
Wallace alleges that she “suffered physical injuries to
her head, her back, and her right shoulder, her neck and her
right side” resulting from an alleged third-party
criminal act on Wal-Mart's property in November
2016. As compensation for these alleged
injuries, Wallace seeks damages for “[p]hysical and
mental pain, suffering and disability (past, present and
future), ” “[m]edical expenses, ” and
was served with Wallace's petition on November 7,
2017. On November 21, 2017, Wal-Mart filed an
answer and propounded discovery on Wallace.Wallace fulfilled
Wal-Mart's discovery request on February 6,
2018. Wallace's response included medical
bills totaling approximately $52, 000 allegedly stemming from
the incident at issue. Wal-Mart removed the case two days later,
on February 8, 2018.
asserts that this case should be remanded to the Orleans
Parish Civil District Court for lack of complete diversity of
citizenship. Wal-Mart disagrees, arguing that the
lone defendant with Louisiana citizenship has yet to be
served and so he should not be considered when determining
whether complete diversity exists.
28, United States Code, § 1332(a)(1) provides that
“[t]he district courts shall have original jurisdiction
of all civil actions where the matter in controversy exceeds
the sum or value of $75, 000 . . . and is between . . .
citizens of different States.” Courts have long
interpreted § 1332 to demand complete diversity. See
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005)
(“Since Strawbridge v. Curtiss, . . . we have
read the statutory formulation ‘between . . . citizens
of different States' to require complete diversity
between all plaintiffs and all defendants.”). Complete
diversity “requires that all persons on one side of the
controversy be citizens of different states than all persons
on the other side.” McLaughlin v. Miss. Power
Co., 376 F.3d 344, 353 (5th Cir. 2004) (quoting
Harrison v. Prather, 404 F.2d 267, 272 (5th Cir.
petition, Wallace names Jeremy Johnson
(“Johnson”) as a defendant.Johnson is a
Louisiana citizen as is Wallace. As such, Johnson's
presence in the case would typically destroy complete
28 U.S.C. § 1441(b)(2) provides that “[a] civil
action otherwise removable . . . under section 1332(a) of
[Title 28] may not be removed if any of the parties
in interest properly joined and served as defendants
is a citizen of the State in which such action is
brought.” (emphasis added). Looking to the plain
language of § 1441(b)(2), Johnson's Louisiana
citizenship can only serve as a bar to removal if he has been
served. See Leech v. 3M Co., 278 F.Supp.3d 933, 941
(E.D. La. 2017) (Brown, J.) (“[T]he plain language of
[28 U.S.C. § 1441(b)(2)] provides that the citizenship
of an unserved forum defendant should not be
considered in determining whether the forum defendant rule is
satisfied.”). “[C]ourts have virtually uniformly
held that, where complete diversity exists between the
parties, the presence of an unserved resident defendant does
not prevent removal.” Colletti v. Bendix, No.
16- 308, 2016 WL 770646, at *2 (E.D. La. Feb. 29, 2016)
(Lemelle, J.) (quoting Stewart v. Auguillard Constr.
Co., No. 09-6455, 2009 WL 5175217, at *3 (E.D. La. Dec.
18, 2009) (Lemmon, J.)). Since Johnson has never been served,
either prior to or following removal, 
Wal-Mart's removal will not fail for lack of complete
respect to the timeliness of Wal-Mart's removal, 28
U.S.C. § 1446(b)(1) provides that “[t]he notice of
removal of a civil action . . . shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action . . . is
based.” Wallace seizes on this language to assert that
Wal-Mart's removal was untimely because, despite having
been served on November 7, 2017, Wal-Mart did not remove the
case until February 8, 2018-well outside §
1446(b)(1)'s 30-day window.
there is an exception to the removal period established under
If the case stated by the initial pleading is not removable,
a notice of removal may be filed within 30 days after receipt
by the defendant, through service or otherwise, of a copy of
an amended pleading, motion, order or other paper from which
it may first be ...