United States District Court, W.D. Louisiana, Lake Charles Division
MARY LAFORGE ET AL.
GOLDEN NUGGET LAKE CHARLES, LLC, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a Motion to Remand and for Attorney's Fees
and Costs filed by plaintiffs Mary LaForge and Wayne Laforge.
Doc. 10. Defendant AGS, LLC, opposes remand. Doc. 18. This
motion has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636.
reasons stated below, IT IS RECOMMENDED that
the motion be GRANTED in part and
DENIED in part.
and Wayne Laforge filed suit seeking redress for injuries
that Mary Laforge claims to have sustained when she fell over
a dark colored chair inside the Golden Nugget Lake Charles
Casino on June 16, 2017. Doc. 1, att. 2, pp. 3-4. Suit was
filed in the 14th Judicial District Court,
Calcasieu Parish, on June 9, 2018. Doc. 1, att. 2. Made
defendants were Golden Nugget Lake Charles, LLC, IGT, Inc.,
Elaut USA, Inc., Deere Credit, Inc., Wells Fargo Vendor
Financial Services, LLC (hereafter “Wells
Fargo”), Everi Games, Inc., AGS, LLC (hereafter
“AGS”), Transaction Network Services, Inc., and
Aristocrat Technologies, INC (hereafter
“Aristocrat”). Id. at 2-3.
12, 2018, AGS removed the action to this court under the
provisions of 28 U.S.C. § 1441(b), claiming we have
original jurisdiction under the provisions of 28 U.S.C.
§ 1332 in that there exists complete diversity between
the parties and the amount in controversy exceeds $75, 000.
Doc. 1, pp. 4-6. No. other defendants joined in the removal
and AGS did not include their written consent. Doc. 1. On
July 27, 2018, Aristocrat filed an answer with this court.
August 10, 2018, plaintiffs filed the instant motion for
remand. Doc. 10. They provide proof that all named defendants
were served at the time of removal [id. at atts.
1-2] and assert a procedural defect in removal based on
AGS's failure to obtain affirmative joinder or consent of
all properly joined and served defendants under 28 U.S.C.
§ 1446. Id. at att. 3, pp. 3-4. They also
request the reasonable attorney fees and costs associated
with the filing of the instant motion. Id. at. 4-5.
AGS opposes remand. Doc. 18.
“‘Federal Courts are courts of limited
jurisdiction,' possessing ‘only that power
authorized by Constitution and statute.'” Gunn
v. Minton, 133 S.Ct. 1059, 1064 (2013) (citing
Kokkonen v. Guardian Life Ins. Co. of America, 114
S.Ct. 1673, 1675 (1994). Generally, “any 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.” 28 U.S.C. § 1441(a). However,
federal courts are duty-bound to examine subject-matter
jurisdiction sua sponte. Burciaga v. Deutsche Bank
National Trust Co., 871 F.3d 380, 384, n.4 (5th
Cir.2017) (citations omitted). When removing an action based
on 28 U.S.C. § 1332, there must be complete diversity
[see Caterpillar Inc. v. Lewis, 117 S.Ct. 467, 468
(1996)] and a suit “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.” 28 U.S.C. § 1441(b)(2).
procedure for removal is governed by 28 U.S.C. § 1446.
In cases involving multiple defendants, all defendants must
join or consent to removal within thirty days of service of
process upon the last-served defendant. 28 U.S.C. §
1446(b)-(c). This service occurs “after the receipt by
the defendant . . . of a copy of the initial pleading setting
forth the claim for relief upon which such action or
proceeding is based.” 28 U.S.C. § 1446(b)(1). This
means that “a defendant's thirty-day removal period
commences on formal service of process, not merely on receipt
of actual notice of the complaint through informal
channels.” City of Clarksdale v. BellSouth
Telecommunications, Inc., 428 F.3d 206, 210 (5th Cir.
2005) (noting the language of 28 U.S.C. § 1446(b)(1) was
clarified by the Supreme Court in Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc., 119 S.Ct. 1322 (1999)).
purposes of removal to federal court, service of process is
governed by state law. BellSouth, 428 F.3d at 210.
Louisiana law prescribes how plaintiffs are to serve process
on defendants. See, e.g., La. Code Civ. Pro. art.
1266 (as to LLCs); La. Code Civ. Pro. art. 1261 (as to
corporations). After such service, a sheriff's return
“sufficient [ ] to show service in compliance with law,
” is endorsed and becomes part of the record.
See. La. Code Civ. Pro. art. 1292.
assert AGS failed to obtain affirmative joinder or consent of
all properly joined and served defendants within the thirty
days prescribed by § 1446. Doc. 10, att. 3, pp. 3-4. AGS
responds that defendant Aristocrat did consent timely with
the filing of its answer in this court. Doc. 18, pp. 1-5. It
argues no consent was required from defendant Wells Fargo as
it was a nominal defendant. Id. at 5-7. It concludes
by arguing no consent was required from the remaining
defendants as their ...