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Manzanarez v. Liberty Mutual Fire Ins. Co.

United States District Court, E.D. Louisiana

August 26, 2019

LARRY MANZANAREZ, ET AL.
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY, ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is plaintiffs, Larry Manzanarez and Leonel Manzanarez's (collectively, the “plaintiffs”), second motion[1] to remand the above-captioned matter to Louisiana state court. For the following reasons, the motion is granted.

         I.

         This case arises out of a motor vehicle accident involving the plaintiffs that occurred on October 18, 2017.[2] The plaintiffs sued four defendants in the Civil District Court for the Parish of Orleans, alleging that the accident occurred as a result of the negligence of defendant John Lenard Grube (“Grube”), who was allegedly working as an employee for defendant JLB Contractors, LLC (“JLB Contractors”) at the time of the accident.[3] On February 14, 2019, JLB Contractors and defendant Liberty Mutual Fire Insurance Company (“Liberty Mutual”) removed the case to federal court for the first time on the basis of federal diversity jurisdiction.[4] On March 21, 2019, this Court granted the plaintiffs' first motion to remand for lack of subject matter jurisdiction because JLB Contractors and Liberty Mutual could not prove by a preponderance of the evidence that the amount in controversy exceeded $75, 000 exclusive of interest and costs.[5]

         On July 11, 2019, plaintiffs supplemented their discovery responses to provide their medical records and billing statements.[6] On July 15, 2019, Grube, who was previously served by long-arm service, answered plaintiffs' Petition for Damages.[7]JLB Contractors, Liberty Mutual, and Grube are represented by the same counsel (“defense counsel”).[8] On July 17, 2019, defense counsel removed the case to federal court a second time on the basis of federal diversity jurisdiction by filing a Petition for Removal (“the Petition”).[9]

         On August 15, 2019, plaintiffs filed the instant motion arguing that the Petition is procedurally defective because JLB Contractors and Liberty Mutual did not provide Grube's written consent to removal when he was a properly joined and served defendant.[10] A fourth defendant, Idealease Services, Inc., is named in the complaint, but has not been served.[11]

         II.

         Under 28 U.S.C. § 1441(a), “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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending, ” unless Congress provides otherwise. “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Manguno v. Prudential Prop. & Cas. Co., 276 F.3d 720, 723 (5th Cir. 2002).

         To remove a case from state to federal court, a defendant must file a notice of removal. 28 U.S.C. § 1446(a). This notice must be filed within thirty days of service on the first defendant, provided the case is then removable. 28 U.S.C. § 1446(b); Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262-63 (5th Cir. 1988). “[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). “If the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an ‘other paper'” 28 U.S.C. § 1446(c)(3)(A).

         Pursuant to 28 U.S.C. § 1332, a district court has original jurisdiction over cases in which the amount in controversy exceeds $75, 000, exclusive of interest and costs, and the parties are citizens of different states. It is uncontested that the parties are completely diverse, as the plaintiffs are both Louisiana citizens, and JLB Contractors, Liberty Mutual, and Grube are foreign citizens.[12] It is similarly uncontested that the medical records and billing statements provide sufficient evidence that the amount in controversy exceeds $75, 000 and constitute an “other paper” under 28 U.S.C. § 1446(b)(3) sufficient to trigger the thirty-day period in which the defendants could file a notice of removal.[13] Therefore, all served defendants, JLB Contractors, Liberty Mutual, and Grube, had until August 10, 2019 to file or consent to a proper notice of removal.[14]

         The Fifth Circuit has interpreted 28 U.S.C. § 1446 to require that all properly joined and served defendants expressly consent to removal, even if a subsequent defendant is joined after the thirty-day period to remove has begun. Getty Oil, 841 F.2d at 1262-63. If a properly joined and served defendant fails to consent, the petition is defective and requires remand. Id.; Ortiz v. Young, 431 Fed.Appx. 306, 307 (5th Cir. 2011). Under the “rule of unanimity, ” it is not necessary for each defendant to sign the notice of removal, “but there must be some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have authority to do so[.]” Getty Oil, 841 F.2d at 1262 n.11; Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002).

         Conclusory statements alleging that all defendants consented to and joined in the removal without reference to any authority to give such consent are insufficient and require the case to be remanded. See Getty Oil, 841 F.2d at 1263 n.12 (holding that an allegation that the non-consenting defendant “do[es] not oppose and consent[s] to this Petition for Removal” without stating any basis for the allegation is insufficient); Brantley v. Pacific Pioneer Shipping, No. 09-3006, 2009 WL 1458258 at *2 (E.D. La. May 21, 2009) (Lemmon, J.) (holding remand to be proper where the notice of removal only stated that “[a]ll defendants to this proceeding have expressly consented to removal of this case to this court” without written indication from each served defendant that each actually consented or that counsel was authorized to and was acting on their behalf); Williams v. Hoyle, No. 08-1298, 2008 WL 11354996, at *2 (E.D. La. May 30, 2008) (Zainey, J.) (finding the allegation that “[a]ll defendants, served or unserved, consent to removal” to be insufficient under § 1446 as interpreted by the Fifth Circuit).

         Consent or joinder will not be implied simply because consenting and non-consenting defendants have the same attorney. Garner v. Hyken, No. 10-4135, 2011 WL 1002098, at *2-3 (E.D. La. Mar. 18, 2011) (Vance, J.) (finding that the attorney representing both consenting and non-consenting defendants should have made sure that the non-consenting parties filed a written consent to removal once they were served within the thirty-day period); Royal v. Fontenot, No. 09-0835, 2010 WL 4068868, at *2-3 (W.D. La. Oct. 14, 2010) (holding that even though the same attorney represented both the defendant in his personal capacity and as president of defendant-company, remand was proper because the notice of removal did not allege the defendant was acting on behalf of or with the authorization of the defendant-company, the notice did not include any language that the defendant-company consented to the removal, and defense counsel did not sign the document as a representative for defendant-company); Morales v. Shaffer, No. 07-3054, 2007 WL 3237457, at *3 (E.D. La. Oct. 31, 2007) (Vance, J.) (holding that the petition for removal was deficient because even though it “demonstrated clear awareness of the other defendants in the action by including statements about their citizenship status” and consenting and non-consenting defendants had the same counsel, the petition failed to indicate that any of the other defendants ...


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