The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALVIN GRANT, SR., ET AL. CIVIL ACTION
VERSUS NO. 19-7749
FCA US, LLC, ET AL. SECTION A(1)
ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 13) filed by Alvin Grant, Sr., Alta
Grant, and Alvin Grant, Jr. (hereinafter collectively referred to as “Plaintiffs”). Defendant FCA
US, LLC (“FCA”) opposes the motion (Rec. Doc. 14) and Plaintiffs replied (Rec. Doc. 20). The
Motion, set for submission on May 15, 2019, is before the Court on the briefs without oral
argument. Having considered the motion and memoranda of counsel, the record, and the
applicable law, the Court finds that Plaintiffs’ Motion to Remand (Rec. Doc. 13) is GRANTED
for the reasons set forth below.
I. Background
On April 5, 2018, Plaintiff Alvin Grant Sr., a passenger in a rented 2018 Dodge Caravan,
incurred several injures as a result of a motor vehicle accident allegedly caused by Robert
Matlock (Rec. Doc. 1-2, ¶¶ 5-7). During the collision, Plaintiffs argue that the seat failed to
properly restrain and protect Grant Sr. (Id. at 13). Plaintiffs filed suit in the Civil Judicial District
Court for the Parish of Orleans alleging that the 2018 Dodge Caravan designed, manufactured,
distributed, and sold by Defendant FCA violated the Louisiana Product Liability Act, La. R.S.
9:2800.51. (Id. at 19). The state court Petition also asserted claims for uninsured motorist
benefits against USAA Casualty Insurance Company, Empire Fire and Marine Insurance
Company, and EAN Holdings, LLC d/b/a Enterprise Car Rentals. (Id. at 40- 47). Defendant FCA
removed the matter to this Court pursuant to diversity jurisdiction, 28 U.S.C § 1332 in
accordance with 28 U.SC. § 1441(b). (Rec. Doc. 1, p. 1). Plaintiffs now request this Court to
remand the case back to state court.
II. Legal Standard
The removing defendant bears the burden of demonstrating that federal jurisdiction exists
and therefore that removal was proper. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.
1993), cert. denied, 510 U.S. 868, 114 S.Ct. 192, 126 L.Ed.2d 150 (1993). In assessing whether
removal is appropriate, the court is guided by the principle, grounded in notions of comity and
the recognition that federal courts are courts of limited jurisdiction, and that removal statutes
should be strictly construed. See, e.g., Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d
720, 723 (5th Cir. 2002). Doubts regarding whether federal jurisdiction is proper should be
resolved against federal jurisdiction. Acuna v. Brown & Root, 200 F.3d 335, 339 (5th Cir. 2000).
III. Discussion
Plaintiffs move to remand the case to the Civil District Court for the Parish of Orleans on
the rationale that more than thirty days have passed since service of the last served Defendant
and FCA’s co-Defendants have not consented to removal. (Rec. Doc. 13, p. 2). Plaintiffs argue
that all Defendants were served on March 22, 2019. As more than thirty days have lapsed,
Plaintiffs assert that Defendant FCA violated the “rule of unanimity.” (Rec. Doc. 13-1, pp. 2-3).
FCA opposes the motion arguing that it did not have knowledge that its co-Defendants were
served because Plaintiffs failed to file proof of service into the state court record prior to
removal. (Rec. Doc. 14, p. 1). FCA asserts that the facts constitute as an “exceptional
circumstance” to the thirty-day consent rule. (Id. at 3). Additionally, FCA argues that consent
from USAA Insurance Agency, Inc., Empire Fire and Marine Casualty Insurance Company, and
EAN Holding, LLC d/b/a Enterprise Care Rentals is not required because they are nominal
defendants. (Id. at 6). Plaintiffs respond that the case does not present “exceptional
circumstances” and the remaining Defendants are not nominal. (Rec. Doc. 20, pp. 5-8).
Pursuant to 28 U.S.C. Section 1446(b) “all defendants who have been properly joined and
served must join in or consent to the removal of the action.” “Each defendant shall have 30 days
after receipt by or service on that defendant of the initial pleading or summons described in
paragraph (1) to file the notice of removal.” 28 U.S.C. § 1446 (b). The Fifth Circuit established
that all defendants who have been served before removal must consent to removal within thirty
days. Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir. 1992). “Exceptional circumstances” such as
bad faith and forum manipulation excuse a removing defendant’s failure to obtain consent from
its co-defendants within the thirty day period. Brown v. Demco, 792 F.2d 478, 482 (5th Cir.
1986).
In this case, all Defendants were served by March 22, 2019. (Rec. Doc. 13-3, 13-4, 13-5,
13-6). On April 3, 2019, Defendant FCA removed the matter to this Court, prior to the state court
record reflecting that the other Defendants had been served. (Rec. Doc. 14, p. 5). As cited by
Plaintiffs, the United States District Court in Texas “attempted to amend the general rule…to a
rule where consent need only be obtained from those defendants about whom the removing
defendant actually knew or should have known had been served.” Forman v. Equifax Credit Info.
SVCS., Inc., et al., 91-431, 1997 WL 162008, at *2 (E.D.La. 1997). The Eastern District in
Forman rejected the equitable approach to the general rule and emphasized that the removing
defendant failed to attempt to contact the co-defendants either through the secretary of state or
the local address on the state court petition. Id. The defendant would have needed to contact the
co-defendants directly prior to removal even if a return service had been filed into the state court
record prior to removal. Id.
The Court also notes a more recent decision from this district in which remand was
denied on the grounds that the removing defendant lacked notice of service. This case is
distinguishable because the defendant argued that it diligently attempted to contact its co-
defendants several times to obtain removal consent. Wagner v. Government Employees
Insurance Company, et al., 18-10281, 2019 WL 626430, at*2 (E.D.La. Feb. 14 2019).
Considering Defendant FCA’s failure to attempt to contact the other Defendants and the lack of
facts supporting bad faith and forum manipulation, the Court finds that the facts do not present
an exceptional circumstance, and remand is appropriate.
The Court also finds that the co-Defendants are not nominal. Fifth Circuit precedent
establishes that “nominal” or “formal” parties need not join in a removal petition. Farias v. Bexa
County Bd. of Trustees for Mental Health Mental Retardation Services, 925 F.2d 866, 871, (5th
Cir. 1991)(citing Robinson v. National Cash Register Co., 808 F.2d 1119, 1123 (5th Cir.1987);
B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549–50 (5th Cir. 1981); Tri–Cities Newspapers,
Inc. v. Tri–Cities Printing Pressmen and Assistants' Local 349, Int'l Printing Pressmen and
Assistants' Union of N. Am., 427 F.2d 325, 327 (5th Cir. 1970)). In order to establish that a
defendant is nominal, “the removing party must show ... that there is no possibility that the
plaintiff would be able to establish a cause of action against the non-removing defendants in state
court.” Id. (quoting B., Inc., 663 F.2d at 549).
Defendant FCA argues that Plaintiffs lump together the co-Defendants as one and allege
that in light of the rental contract, there exists liability and uninsured/underinsured motorist
coverage. (Rec. Doc. 14, p. 6). FCA asserts that its co-Defendants have yet to file an answer or
motion for an extension of time. (/d. at 7). FCA argues that Plaintiffs’ failure to prosecute their
action against the Defendants is a use of the federal removal rules for ““gamesmanship” and that
Plaintiffs merely intend to complicate the removal process. (/d.).
The state court Petition pleads that Defendants USAA, Empire Fire and Marine Insurance
Company, and EAN Holdings, LLC d/b/a Enterprise Car Rentals are liable to Plaintiffs pursuant
to an uninsured/underinsured motorist claim. (Rec. Doc. 1, {| 40-47). The Court finds that these
claims are neither nominal nor formal. The Court declines to find that Plaintiffs’ “failure to
prosecute” equates to designating the Defendants as nominal. The Court finds that FCA failed to
show that there is no possibility that the plaintiff would be able to establish a cause of action
against the non-removing Defendants in state court.
IV. Conclusion
Accordingly;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 13) is GRANTED.
New Orleans, Louisiana, this 26th day of June, 2019
4 c i a
(rns G JAYC ZAIN EY
U DB STAVES DISTRICT JUDGE
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