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LaForge v. Golden Nugget Lake Charles LLC

United States District Court, W.D. Louisiana, Lake Charles Division

February 26, 2019

MARY LAFORGE ET AL.
v.
GOLDEN NUGGET LAKE CHARLES, LLC, ET AL.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before 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.

         For the reasons stated below, IT IS RECOMMENDED that the motion be GRANTED in part and DENIED in part.

         I.

         Background

         Mary 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.

         On July 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. Doc. 9.

         On 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.

         II.

         Law and analysis

          “‘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).

         The 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)).

         For 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.

         Plaintiffs 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 ...


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