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Fagan v. Thomas

United States District Court, E.D. Louisiana

December 6, 2019

SHAWN FAGAN
v.
JAMES THOMAS, ET AL.

         SECTION "L" (2)

          ORDER & REASONS

          Eldon E. Fallon United States District Judge.

         Before the Court is Plaintiff's motion to remand. R. Doc. 8. Defendants oppose the motion. R. Doc. 10. Oral argument was heard on November 21, 2019. Having considered the parties' arguments and the applicable law, the Court now rules as follows.

         I. BACKGROUND

         This case arises out of a personal injury sustained by Plaintiff Shawn Fagan. Plaintiff alleges that on December 24, 2018, while acting in the course and scope of his employment, he assisted in the loading of an eighteen-wheeler truck owned by Defendant Decker Truck Lines, Inc. (“Decker”). R. Doc. 1-4 at 2. Plaintiff contends that he was driving a pallet jack from the back of the trailer to the loading dock when the driver of the truck, James Thomas, pulled the truck out of the loading dock, causing Plaintiff to “fall several feet into the loading bay below and the palatte [sic] jack to fall on top of him.” R. Doc. 1-4 at 2. Plaintiff avers he sustained serious personal injuries, including cervical and lumbar sprains, and is full disabled as a result. R. Doc. 1-4 at 2, 3.

         Plaintiff filed suit in the Fortieth Judicial District Court for the Parish of St. John the Baptist against Defendants James Tomas, Decker, an unknown insurance company, and United Fire & Indemnity Company and/or United Fire & Casualty Company, seeking damages for past, present, and future medical expenses, lost wages and opportunity costs, pain and suffering, and emotional distress. R. Doc. 1-4 at 1.

         Defendants Thomas, Decker, and United States Fire Insurance Company timely removed the action to federal court, explaining that diversity jurisdiction exists under 13 U.S.C. § 1332 because the parties are completely diverse and because the amount in controversy exceeds $75, 000. R. Doc. 1 at 3. In the notice of removal, Defendants note that United States Fire Insurance Company was improperly designated in Plaintiff's petition as “United Fire & Indemnity Company and/or United Fire & Casualty Company.” R. Doc. 1 at 1. Defendants jointly answered, generally denying Plaintiff's allegations and raising a number of affirmative defenses, including contributory negligence, failure to mitigate damages, and failure to state a claim. R. Doc. 5 at 3. Although they were served, named Defendants United Fire & Indemnity Company and United Fire & Casualty Company have not appeared in this proceeding.

         II. PENDING MOTION

         Pending before the Court is Plaintiff's motion to remand. R. Doc. 8. Plaintiff contends that removal was improper because the notice of removal was joined by United States Fire Insurance Company, not United Fire & Indemnity Company. R. Doc. 8-1 at 3. Plaintiff contends that United States Fire Insurance Company is not a party to the suit, and that United Fire & Indemnity Company has failed to consent to removal in a timely manner. R. Doc. 8-1 at 3. Plaintiff disputes Defendants' argument that United States Fire Insurance Company was improperly designated as United Fire & Indemnity Company and argues that “[w]ithout an intervention, United States Fire Insurance Company cannot insinuate itself into this suit.” R. Doc. 8-1 at 2-3. Accordingly, Plaintiff contends that United States Fire Insurance Company's consent to removal cannot be imputed to United Fire & Indemnity Company. R. Doc. 8-1 at 4. Because not all defendants have joined the removal, Plaintiff argues, the removal was procedurally improper, and the case must be remanded. R. Doc. 8-1 at 4.

         Defendants oppose the motion, arguing that because United Fire & Indemnity Company and United Fire & Casualty Company are improperly named as defendants in this suit, they “should be ignored for the purpose of removal, and remand should be denied.” R. Doc. 10 at 2. In support, Defendants explain that “[n]o purpose could be served by seeking consent to removal from parties who were improperly identified and who have no connection to the case except for Plaintiff's mistake in naming them.” R. Doc. 10 at 2. Defendants urge the Court to deny the motion to remand, or alternatively to allow Defendants leave to withdraw the notice of removal until United States Fire Insurance Company has been properly named as a defendant and served in this matter. R. Doc. 10 at 3.

         III. LAW & ANALYSIS

         A defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction over the issue. 28 U.S.C. § 1441(a). A federal court has original jurisdiction over cases involving complete diversity of citizenship among the parties where the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a). The removing party bears the burden of proving that a district court has jurisdiction over a matter. See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993). Because removal jurisdiction “raises significant federalism concerns, ” Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988), it is strictly construed and doubts regarding removal jurisdiction should be resolved against federal jurisdiction, Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).

         Generally, removal is effectuated by the filing of a notice of removal with the federal district court within thirty days of a defendant's receipt of the pleading or other papers that make it apparent that the case is removable. U.S.C. §§ 1446(b)(1), (3). The removal statute provides that “all defendants who have been properly joined and served must join in or consent to the removal.” U.S.C. § 1446(b)(2). However, the Fifth Circuit has held that in cases involving allegations of improper joinder of parties, “application of this requirement to improperly or fraudulently joined parties would be nonsensical, as removal in those cases is based on the contention that no other proper defendant exists.” Jernigan, 989 F.2d at 815.

         Only defendants have the power to remove cases to federal court. “A non-party, even one that claims to be a real party in interest, lacks the authority to institute removal proceedings.” De Jongh v. State Farm Lloyds, Inc., 555 F.Appx. 435, 437 (5th Cir. 2014) (citing Salazar v. Allstate Texas Lloyd's, Inc., 455 F.3d 571 (5th Cir. 2006)). Curiously absent from either party's briefs are citations to instructive Fifth Circuit cases discussing the contours of this rule, such as Salazar ...


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