United States District Court, W.D. Louisiana, Lake Charles Division
ROBERT M. LEDOUX, ET AL.
CHEROKEE INSURANCE COMPANTY, ET AL
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion to Remand [doc. 9] filed by Robert
Ledoux, individually and on behalf of his minor son, G.L.
(hereinafter “plaintiffs”) in response to a
Notice of Removal [doc. 1] filed by Cherokee Insurance Co.,
Justin Koroush, and Pam Transport, Inc. (hereinafter
motion has been referred to the undersigned for review,
report, and recommendation pursuant to 28 U.S.C. § 636.
For the reasons set forth below, IT IS
RECOMMENDED that the plaintiffs' motion be
case arises from an automobile accident that occurred on
November 28, 2016, in Iowa, Louisiana. Doc. 1, att. 4, pp.
4-5. Plaintiffs filed suit on November 15, 2017, in the 14th
Judicial District Court, Parish of Calcasieu, State of
Louisiana, seeking damages as a result of injuries allegedly
suffered therein. Id. at pp. 4-8. In their petition
plaintiffs allege that the collision occurred when Justin
Koroush, acting within the course and scope of his employment
with Pam Transport, Inc., struck
plaintiffs' stationary sports utility vehicle with an
18-wheeler owned by Pam Transport, Inc. and insured by
Cherokee Insurance Co. Id. Plaintiffs also named
their uninsured/underinsured motorist carrier, State Farm
Insurance Co. (hereinafter “State Farm”), as a
January 23, 2018, PTI Defendants filed a notice of removal
alleging that the petition for damages gave rise to federal
jurisdiction under 28 U.S.C. § 1332, claiming complete
diversity and that the amount in controversy exceeded $75,
000. Doc. 1, p. 3. On February 22, 2018, plaintiffs filed a
motion to remand citing three deficiencies in PTI
Defendants' notice of removal. Doc. 9, p. 1. First
plaintiffs allege that the notice of removal is untimely
because PTI Defendants filed the notice of removal more than
30 days after service of the petition for damages. Doc. 9,
att. 4, p. 2. Second plaintiffs allege that the PTI
Defendants failed to properly provide evidence of express
consent to the removal given by State Farm, who was served on
December 20, 2017 as documented by proof of service attached
to plaintiffs' motion to remand. Doc. 9, att. 4, pp. 3-4,
doc. 9, att. 1, p. 1. Plaintiffs further allege that PTI
Defendants failed to carry the burden of proving damages in
excess of $75, 000. Doc. 9, att. 4, pp. 4-5.
their opposition to the motion to remand, PTI Defendants
claim that the case's removability became evident on
January 22, 2018, one week after plaintiffs failed to
stipulate that the damages were less than $75, 000. Doc. 11,
pp. 2-3. PTI Defendants state that plaintiffs' refusal to
answer a request to stipulate that the damages sought would
not exceed $75, 000 established sufficient indication to
conclude the amount in controversy exceeds $75, 000.
Id. Furthermore, PTI Defendants state that this
first made them aware of the case's removability, thereby
making their January 23, 2018 notice of removal timely.
Id. PTI Defendants also allege that they discussed
removal and acquired State Farm's consent prior to filing
the notice of removal and that any omission of an express
writing “was merely an oversight.” Id.
at pp. 3-4.
civil action filed in state court where federal district
courts have concurrent original jurisdiction may be removed
to the federal court in the district in which the state court
of original filing is located. 28 U.S.C. § 1441(a).
District courts have original jurisdiction between citizens
of different states where the amount in controversy exceeds
$75, 000, exclusive of interests and costs. 28 U.S.C. §
1332. In a removal action, the defendant bears the burden of
showing that federal jurisdiction exists and that the removal
was procedurally proper. See De Aguilar v. Boeing
Co., 47 F.3d 1404, 1408 (5th Cir. 1995).
removal procedure set out in 28 U.S.C. § 1446 provides
that “all defendants who have been properly joined and
served must join in or consent to the removal of the
action.” 28 U.S.C. § 1446(b)(2)(A). Accordingly,
all then-served defendants who do not join in the removal
petition must file timely written indications of their
consent. Getty Oil Corp. v. Ins. Company of North
America, 841 F.2d 1254, 1262 n. 11 (5th Cir. 1988).
Written consent must be indicated by the defendant's
signature on the removal petition or filing of written
consent within the removal period. Louisiana v. Aspect
Energy, LLC, 2011 WL 5238666, *1 (W.D. La. Oct. 1, 2011)
(citing Getty Oil, 841 F.2d at 1262 n. 11, 1263)).
Statements by the removing defendants that other defendants
have consented are insufficient. Id. “If
written consent on the part of all defendants is lacking when
the thirty day removal period elapses, the notice of removal
is deemed defective and the case must be remanded.”
Wamsley v. Ditzler, 2014 WL 1030085, *2 (W.D. La.
Mar. 17, 2014) (citations omitted).
Defendants' removal to be proper, State Farm, a properly
joined and served defendant, necessarily had to have: (1)
joined in the notice of removal; or (2) timely filed express,
written consent to the removal procedure. 28 U.S.C. §
1446(b)(2)(A); Getty Oil, 841 F.2d at 1262 n.11,
1263. PTI Defendants aver that they obtained State Farm's
consent prior to filing the notice of removal and that their
failure to provide correspondence evidencing said consent
does not preclude removal. Doc. 11, p. 3-4. This claim is
without merit on two grounds. First, PTI Defendants have the
burden of showing that the removal action was procedurally
proper. See De Aguilar 47 F.3d at 1408. Thus, PTI
Defendants had to show proper consent either at the time of
filing the notice of removal, or within the 30 day removal
period. See Getty Oil, 841 F.2d at 1262 n.11, 1263.
Their failure to timely provide such information constitutes
an incurable procedural defect. Secondly, PTI Defendants'
discussion with State Farm about consent lacks the proper
form requirement. Consent to removal by a codefendant must be
in writing; thus, mere statements by PTI Defendants affirming
State Farm's consent are improper. Id.
light of federalism implications associated with the removal
process, removal statutes are strictly construed. See
Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008).
Moreover, “[d]istrict courts have no power to overlook
timely raised procedural objections to a removal; instead, a
district court must remand a case which was removed pursuant
to a procedurally defective notice.” Kunce v. State
Farm Mut. Ins. Co., 2013 WL 1501041, *2 (W.D. La. Apr.
10, 2013) (citing Spoon v. Fannin County, 794
F.Supp.2d 703 (E.D. Tex. 2011)). Therefore, considering the
procedural defects in PTI ...