United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is the plaintiff’s motion to remand. For the
reasons that follow, the motion is GRANTED.
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.
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.
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.
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.
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)).
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. 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).
“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). 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. 28 U.S.C. § 1446(b)(2)(B).
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 days after service on the last-served