United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court is the plaintiff's motion for remand. For the
following reasons, the motion is GRANTED.
litigation arises from an injury sustained by a woman during
her stay at a hotel in New Orleans.
visiting New Orleans from out of state, Terri Cotton slipped
and fell at a hotel. On March 14, 2018, Cotton sued for her
injuries, naming Marriott International, Inc. as the operator
of the hotel and HMC Properties II Limited Partnership as the
owner. She served Marriott International on April 3, 2018 and
HMC Properties on April 4, 2018. On May 3, 2018, Marriot
Hotel Services, Inc., the actual operator of the hotel, filed
a notice of removal. On May 15, 2018, Cotton filed a motion
to remand on the grounds that HMC Properties did not consent
the plaintiff challenges removal in this case, the removing
defendants carry the burden of showing the propriety of this
Court's removal jurisdiction. See Jernigan v. Ashland
Oil, Inc., 989 F.2d 812, 815 (5th Cir.), cert.
denied, 510 U.S. 868, 114 S.Ct. 192, 126 L.Ed.2d 150
(1993); Willy v. Coastal Corp., 855 F.2d 1160, 1164
(5th Cir. 1988). In addition, any ambiguities are construed
against removal, Butler v. Polk, 592 F.2d 1293, 1296
(5th Cir. 1979), as the removal statute should be strictly
construed in favor of remand. York v. Horizon Fed. Sav.
and Loan Ass'n, 712 F.Supp. 85, 87 (E.D. La. 1989);
see also Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100 (1941).
defendant may remove any civil action filed in state court if
a federal court would have original jurisdiction over the
action. 28 U.S.C. § 1441(a). To do so, the defendant
must file a notice of removal within thirty days after it was
served with the pleadings. 28 U.S.C. § 1446(b)(1).
Additionally, “[a]ll 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). The
“rule of unanimity” requires that, absent
exceptional circumstances, all served defendants must join or
otherwise file a written notice of consent to removal before
the expiration of the 30-day removal period in 28 U.S.C.
§ 1446. Getty Oil Corp. v. Insurance Co. of North
America, 841 F.2d 1254, 1261-62 (5th Cir. 1988) (holding
that all served defendants are required to join in petition
for removal no later than 30 days from the date on which the
first defendant was served); Gillis v. Louisiana,
294 F.3d 755, 759 (5th Cir. 2002). “It is well settled
in the Fifth Circuit that all defendants who have been served
before removal must consent to removal within 30 days after
service on the first defendant.” Forman v. Equifax
Credit Info. Services, Inc., 1997 WL 162008, at *1 (E.D.
La. April 4, 1997) (Clement, J.) (citing Doe v.
Kerwood, 969 F.2d 165, 167 (5th Cir. 1992) and Getty
Oil Corp. v. Ins. Co. of North America, 841 F.2d 1254,
1263 (5th Cir. 1988)). But “[d]efendants (at least
those not citizens of the forum state) who are unserved when
the removal petition is filed need not join in it.”
Getty Oil Corp. v. Ins. Co. of North America, 841
F.2d at 1262 n.9 (5th Cir. 1988) (citing Pullman Co. v.
Jenkins, 305 U.S. 534 (1939)).
may still remove the case even if one defendant did not
timely consent to removal if “exceptional
circumstances” exist. Getty Oil, 841 F.2d at
1263, n. 12; Brown v. Demco, Inc., 792 F.2d 478, 482
(5th Cir. 1986). Circumstances which prompt the Fifth Circuit
to “exercis[e] its equitable powers to permit a party
to consent to removal outside of the statutorily prescribed
time frame often concern plaintiff conduct, and not untimely
consent to removal by a defendant.” Ortiz v.
Young, 431 Fed.Appx. 306, 307-08 (5th Cir. 2011).
“The few district courts that have found exceptional
circumstances generally confronted situations involving bad
faith, forum manipulation, and lost filings.”
Alford v. Chevron U.S.A. Inc., No. 13-5457, 2014 WL
37600, *7 (E.D. La. Jan. 6, 2014)(unpublished). For example,
the Fifth Circuit granted an exception when consent could
only be authorized at a board meeting, and the plaintiff, one
of the members of the board, prevented the board from
scheduling a timely vote. Gillis v. Louisiana, 294
F.3d 755, 758-59 (5th Cir. 2002).
defendants contend that confusion among both parties as to
who the owner and operator were contributed to HMC's
failure to timely consent to removal. In the plaintiff's
complaint, she named HMC Properties II Limited Partnership as
the owner of the hotel. The actual owner is HMC
Hotel Properties II Limited Partnership. (Emphasis
added). Although the plaintiff also named the incorrect
party, Marriot International, Inc., as the operator, the
actual owner, Marriot Hotel Services, Inc., does not allege
that they did not receive notice of the lawsuit within
sufficient time. However, when Marriot Hotel Services
received the pleadings, it believed that that CCMH Properties
II, LLC, a distinct, existing legal entity, was the correct
owner of the hotel. Marriot has a contractual duty to assume
the defense of the hotel's owner, so it is especially
concerned with identifying that entity. The plaintiff's
counsel also believed that CCMH may be the proper owner, and
the parties discussed that the plaintiff may serve CCMH or
substitute it for HMC. Marriot later learned that the owner
was not CCMH Properties, but HMC Hotel Properties. HMC filed
a consent of removal on May 18, 2018, but its consent was due
on May 4, 2018.
and HMC contend that this confusion releases HMC from its
obligation to consent to removal by May 4, 2018, 30 days
after it was served. First, they contend that HMC was not
served because the plaintiff served HMC Properties II Limited
Partnership. They contend that the omission of the word
“Hotel” in the name renders service incomplete
because HMC Properties is not the owner of the hotel or an
existing legal entity in Louisiana. The Court disagrees.
misnomers will not render service ineffective when the
defendant received notice of the lawsuit. In re
Chinese-Manufactured Drywall Prods. Liab. Litig., No.
09-02047, 2017 WL 1476595, *45 (E.D. La. Apr. 21, 2017);
Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d
217, 224 (4th Cir. 1999)(“[S]ervice of process is not
legally defective simply because the complaint misnames the
defendant in some insignificant way.”). There is no
allegation that HMC did not receive notice of the
plaintiff's lawsuit. See Henderson v. United
States, 517 U.S. 654, 672 (1996)(“[T]he core
function of service is to supply notice of the pendency of a
legal action, in a manner and at a time that affords the
defendant a fair opportunity to answer the complaint and