United States District Court, E.D. Louisiana
ORDER & REASONS
E. Fallon United States District Judge.
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.
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.
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.
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
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.
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.
LAW & ANALYSIS
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).
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.
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