United States District Court, E.D. Louisiana
ALVIN GRANT, SR., ET AL.
FCA US, LLC, ET AL.
ORDER AND REASONS
the Court is a Motion to Remand (Rec. Doc.
13) filed by Alvin Grant, Sr., Alta Grant, and Alvin
Grant, Jr. (hereinafter collectively referred to as
“Plaintiffs”). Defendant FCA US, LLC
(“FCA”) opposes the motion (Rec. Doc. 14) and
Plaintiffs replied (Rec. Doc. 20). The Motion, set for
submission on May 15, 2019, is before the Court on the briefs
without oral argument. Having considered the motion and
memoranda of counsel, the record, and the applicable law, the
Court finds that Plaintiffs' Motion to Remand
(Rec. Doc. 13) is GRANTED for the
reasons set forth below.
April 5, 2018, Plaintiff Alvin Grant Sr., a passenger in a
rented 2018 Dodge Caravan, incurred several injures as a
result of a motor vehicle accident allegedly caused by Robert
Matlock (Rec. Doc. 1-2, ¶¶ 5-7). During the
collision, Plaintiffs argue that the seat failed to properly
restrain and protect Grant Sr. (Id. at 13).
Plaintiffs filed suit in the Civil Judicial District Court
for the Parish of Orleans alleging that the 2018 Dodge
Caravan designed, manufactured, distributed, and sold by
Defendant FCA violated the Louisiana Product Liability Act,
La. R.S. 9:2800.51. (Id. at 19). The state court
Petition also asserted claims for uninsured motorist benefits
against USAA Casualty Insurance Company, Empire Fire and
Marine Insurance Company, and EAN Holdings, LLC d/b/a
Enterprise Car Rentals. (Id. at 40- 47). Defendant
FCA removed the matter to this Court pursuant to diversity
jurisdiction, 28 U.S.C § 1332 in accordance with 28
U.SC. § 1441(b). (Rec. Doc. 1, p. 1). Plaintiffs now
request this Court to remand the case back to state court.
removing defendant bears the burden of demonstrating that
federal jurisdiction exists and therefore that removal was
proper. Jernigan v. Ashland Oil, Inc., 989 F.2d 812,
815 (5th Cir. 1993), cert. denied, 510 U.S. 868, 114 S.Ct.
192, 126 L.Ed.2d 150 (1993). In assessing whether removal is
appropriate, the court is guided by the principle, grounded
in notions of comity and the recognition that federal courts
are courts of limited jurisdiction, and that removal statutes
should be strictly construed. See, e.g., Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002). Doubts regarding whether federal
jurisdiction is proper should be resolved against federal
jurisdiction. Acuna v. Brown & Root, 200 F.3d
335, 339 (5th Cir. 2000).
move to remand the case to the Civil District Court for the
Parish of Orleans on the rationale that more than thirty days
have passed since service of the last served Defendant and
FCA's co-Defendants have not consented to removal. (Rec.
Doc. 13, p. 2). Plaintiffs argue that all Defendants were
served on March 22, 2019. As more than thirty days have
lapsed, Plaintiffs assert that Defendant FCA violated the
“rule of unanimity.” (Rec. Doc. 13-1, pp. 2-3).
FCA opposes the motion arguing that it did not have knowledge
that its co-Defendants were served because Plaintiffs failed
to file proof of service into the state court record prior to
removal. (Rec. Doc. 14, p. 1). FCA asserts that the facts
constitute as an “exceptional circumstance” to
the thirty-day consent rule. (Id. at 3).
Additionally, FCA argues that consent from USAA Insurance
Agency, Inc., Empire Fire and Marine Casualty Insurance
Company, and EAN Holding, LLC d/b/a Enterprise Care Rentals
is not required because they are nominal defendants.
(Id. at 6). Plaintiffs respond that the case does
not present “exceptional circumstances” and the
remaining Defendants are not nominal. (Rec. Doc. 20, pp.
to 28 U.S.C. Section 1446(b) “all defendants who have
been properly joined and served must join in or consent to
the removal of the action.” “Each defendant shall
have 30 days after receipt by or service on that defendant of
the initial pleading or summons described in paragraph (1) to
file the notice of removal.” 28 U.S.C. § 1446 (b).
The Fifth Circuit established that all defendants who have
been served before removal must consent to removal within
thirty days. Doe v. Kerwood, 969 F.2d 165, 167 (5th
Cir. 1992). “Exceptional circumstances” such as
bad faith and forum manipulation excuse a removing
defendant's failure to obtain consent from its
co-defendants within the thirty day period. Brown v.
Demco, 792 F.2d 478, 482 (5th Cir. 1986).
case, all Defendants were served by March 22, 2019. (Rec.
Doc. 13-3, 13-4, 13-5, 13-6). On April 3, 2019, Defendant FCA
removed the matter to this Court, prior to the state court
record reflecting that the other Defendants had been served.
(Rec. Doc. 14, p. 5). As cited by Plaintiffs, the United
States District Court in Texas “attempted to amend the
general rule…to a rule where consent need only be
obtained from those defendants about whom the removing
defendant actually knew or should have known had been
served.” Forman v. Equifax Credit Info. SVCS.,
Inc., et al., 91-431, 1997 WL 162008, at *2 (E.D.La.
1997). The Eastern District in Forman rejected the
equitable approach to the general rule and emphasized that
the removing defendant failed to attempt to contact the
co-defendants either through the secretary of state or the
local address on the state court petition. Id. The
defendant would have needed to contact the co-defendants
directly prior to removal even if a return service had been
filed into the state court record prior to removal.
Court also notes a more recent decision from this district in
which remand was denied on the grounds that the removing
defendant lacked notice of service. This case is
distinguishable because the defendant argued that it
diligently attempted to contact its co-defendants several
times to obtain removal consent. Wagner v. Government
Employees Insurance Company, et al., 18-10281, 2019 WL
626430, at*2 (E.D.La. Feb. 14 2019). Considering Defendant
FCA's failure to attempt to contact the other Defendants
and the lack of facts supporting bad faith and forum
manipulation, the Court finds that the facts do not present
an exceptional circumstance, and remand is appropriate.
Court also finds that the co-Defendants are not nominal.
Fifth Circuit precedent establishes that
“nominal” or “formal” parties need
not join in a removal petition. Farias v. Bexa County Bd.
of Trustees for Mental Health Mental Retardation
Services, 925 F.2d 866, 871, (5th Cir. 1991)(citing
Robinson v. National Cash Register Co., 808 F.2d
1119, 1123 (5th Cir.1987); B., Inc. v. Miller Brewing
Co., 663 F.2d 545, 549-50 (5th Cir. 1981);
Tri-Cities Newspapers, Inc. v. Tri-Cities Printing
Pressmen and Assistants' Local 349, Int'l Printing
Pressmen and Assistants' Union of N. Am., 427 F.2d
325, 327 (5th Cir. 1970)). In order to establish that a
defendant is nominal, “the removing party must show ...
that there is no possibility that the plaintiff would be able
to establish a cause of action against the non-removing
defendants in state court.” Id. (quoting
B., Inc., 663 F.2d at 549).
FCA argues that Plaintiffs lump together the co-Defendants as
one and allege that in light of the rental contract, there
exists liability and uninsured/underinsured motorist
coverage. (Rec. Doc. 14, p. 6). FCA asserts that its
co-Defendants have yet to file an answer or motion for an
extension of time. (Id. at 7). FCA argues that
Plaintiffs' failure to prosecute their action against the
Defendants is a use of the federal removal rules for
“gamesmanship” and that Plaintiffs merely intend
to complicate the removal process. (Id.).
state court Petition pleads that Defendants U.S. AA, Empire
Fire and Marine Insurance Company, and EAN Holdings, LLC
d/b/a Enterprise Car Rentals are liable to Plaintiffs
pursuant to an uninsured/underinsured motorist claim. (Rec.
Doc. 1, ¶¶ 40-47). The Court finds that these
claims are neither nominal nor formal. The Court declines to
find that Plaintiffs' “failure to prosecute”
equates to designating the Defendants as nominal. The Court
finds that FCA failed to show that ...