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Clark v. L. Walther & Sons of Georgia

United States District Court, E.D. Louisiana

September 20, 2019

GELESCIA CLARK
v.
L. WALTHER & SONS OF GEORGIA, ET AL.

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE.

         Before the Court is the plaintiff’s motion to remand. For the reasons that follow, the motion is GRANTED.

         Background

         This is a car accident case. The plaintiff’s motion presents a question of removal procedure: whether all properly joined and served defendants timely consented to removal. Finding that they did not, the Court orders remand.

         Gelescia Clark says she was driving in St. James Parish, Louisiana, when the unidentified driver of a truck owned by L. Walther & Sons “pulled out into” her lane and “force[d] her vehicle off the roadway.” Alleging grave injuries, she sued in the Twenty-Third Judicial District Court for the Parish of St. James on May 24, 2019. She named as defendants: the unidentified truck driver; L. Walther & Sons; L. Walther & Sons’ liability insurer, Nationwide Agribusiness Insurance Company; and Clark’s uninsured motorist insurance carrier, Permanent General Assurance Corporation.

         Invoking the Court’s diversity jurisdiction, L. Walther & Sons and Nationwide Agribusiness removed the case on June 28, 2019. They allege, in their notice of removal, that co-defendant “Permanent General has been served but has not made a formal appearance.” They do not allege that Permanent General consented to removal.

         Now, Clark moves to remand. She says the removal was improper because Permanent General did not timely consent to it. The removing defendants rejoin that Permanent General’s consent was not required because it had not appeared at the time of removal. They also submit an email, dated September 11, 2019, as “confirmation” of Permanent General’s consent to the June 28, 2019 removal.

         I.

         On a motion to remand, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995)). “Because removal raises significant federalism concerns, the removal statute is strictly construed ‘and any doubt as to the propriety of removal should be resolved in favor of remand.’” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (quoting In re Hot-Hed, Inc., 477 F.3d 320, 323 (5th Cir. 2007)).

         II.

         A defendant may remove a case from state to federal court if the case is within the federal court’s original jurisdiction. See 28 U.S.C. § 1441(a). The parties agree that the Court has diversity jurisdiction.[1] See 28 U.S.C. § 1332(a)(1). They dispute whether the removing defendants complied with removal procedure. See 28 U.S.C. § 1446(b).

         All “properly joined and served” defendants must consent to removal. 28 U.S.C. § 1446(b)(2)(A). The parties agree that Permanent General was properly joined and served; only its consent is at issue. To establish consent, “there must be some timely filed written indication from each served defendant . . . that it has actually consented to removal.” Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988).[2] This “written indication” is timely if it is filed within the statutory removal period. Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002); Ortiz v. Young, 431 Fed.Appx. 306, 307 (5th Cir. 2011). In a multi-defendant case, each defendant has thirty days “after receipt by or service on that defendant of the initial pleading or summons” to file the notice of removal.[3] 28 U.S.C. § 1446(b)(2)(B).

         The removing defendants filed their notice of removal on June 28, 2019. The notice states that L. Walther & Sons was served on Tuesday, June 4, 2019, and Nationwide Agribusiness and Permanent General were served on Friday, June 7, 2019. So, the deadline for consenting to removal was Monday, July 8, 2019 - thirty-one[4] days after service on the last-served defendants, ...


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