The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAROLYN JOHNSON, CIVIL DOCKET
Plaintiff
VERSUS NO. 20-838
ALLSTATE FIRE AND CASUALTY SECTION: “E” (5)
INSURANCE CO. ET AL,
Defendants
ORDER AND REASONS
Before the Court is a Motion to Remand filed by Plaintiff Carolyn Johnson.1 For
the following reasons, the motion is GRANTED.
BACKGROUND2
On January 24, 2020, Plaintiff Carolyn Johnson filed an action in state court
against Defendants, Allstate Fire and Casualty Insurance Co. (“Allstate”), Amica Mutual
Insurance Co. (“Amica”), Michael Lamonica, and Progressive Paloverde Insurance Co.
(“Progressive”),3 for injuries arising out of automobile accident that occurred on February
12, 2019 when Michael Lamonica collided with a vehicle in which Plaintiff was a
passenger. 4 Amica and Allstate each provided insurance policies to Lamonica. 5
Progressive provided an uninsured/underinsured motorist insurance policy to Plaintiff.6
1 R. Doc. 7. Defendants, Amica Mutual Insurance Company and Michael Lamonica, filed an opposition. R.
Doc. 13. Plaintiff filed a reply. R. Doc. 14.
2 The facts recited herein are as alleged in Plaintiff’s state court petition. R. Doc. 1-1.
3 R. Doc. 1-1.
4 Id. at ¶¶ II-IV.
5 Id. at ¶¶ VII-VIII.
6 Id. at ¶ IX.
As conceded in the Notice of Removal, all defendants were served with Plaintiff’s petition
on February 11, 2020.7
On March 10, 2020, Amica and Michael Lamonica (collectively, the “Removing
Defendants”) removed this case to federal court.8 They contend federal subject matter
jurisdiction is proper under 28 U.S.C. § 1332.9 In their Notice of Removal, the Removing
Defendants provide:
All defendants who have been properly served consent to the removal of this
case to federal court except for Progressive Paloverde Insurance Company
who we made efforts to contact but did not receive a response.10
No written consent to removal from Allstate was attached to the Notice of Removal.
On April 9, 2020, Plaintiff filed the instant Motion to Remand.11 Plaintiff argues
the case must be remanded to state court because the Removing Defendants “seek to
invoke this Court’s jurisdiction based on the unsupported allegation in their Notice of
Removal that ‘the amount in controversy exceeds $75,000.00, excluding interest and
costs,’ in accordance with 28 U.S.C. §1332(a),” and, further, “the removing Defendants
failed to secure the consent of all Defendants prior to filing their Removal.”12 With respect
to the consent issue, the Removing Defendants contend they timely obtained the consent
of all defendants to removal because “[r]ight after Defendants filed their Notice of
Removal on March 10, 2020, Defendants’ counsel received a phone call from
Progressive’s counsel stating that they consented to the removal.”13 In her reply, Plaintiff
notes “[n]o specific facts are provided to the Court, nor any affidavit, correspondence, or
7 R. Doc. 1 at ¶ IV.
8 R. Doc. 1.
9 Id. at ¶¶ IV-XIII.
10 Id. at ¶ XIV.
11 R. Doc. 7.
12 R. Doc. 7-1 at 1. Plaintiff does not dispute that complete diversity exists.
13 R. Doc. 13 at 7.
other evidence in support of Defendants’ efforts or circumstances concerning why they
were unable to secure Progressive’s consent.”14
LEGAL STANDARD
Federal courts are courts of limited jurisdiction and possess only the authority
conferred upon them by the U.S. Constitution or by Congress.15 “The removing party
bears the burden of showing that federal jurisdiction exists and that removal was
proper.”16 Federal law allows for state civil suits to be removed to federal courts in certain
instances.17 Generally, removal jurisdiction is governed by 28 U.S.C. § 1441(a), which
provides:
Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants,
to the district court of the United States for the district and division
embracing the place where such action is pending.18
In this case, Plaintiff argues the Removing Defendants failed to comply with the
removal requirements set forth in 28 U.S.C. § 1446(b). Section 1446(b) provides, in
pertinent part:
(1) The notice of removal of a civil action or proceeding shall be filed within
30 days after the receipt by the defendant, through service or otherwise, of
a copy of the initial pleading setting forth the claim for relief upon which
such action or proceeding is based, or within 30 days after the service of
summons upon the defendant if such initial pleading has then been filed in
court and is not required to be served on the defendant, whichever period is
shorter.
14 R. Doc. 14 at 3.
15 Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
16 See Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
17 See 28 U.S.C. § 1441.
18 Id. § 1441(a).
(2)
(A) When a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in
or consent to the removal of the action.
(B) 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.19
LAW AND ANALYSIS
As provided above, § 1446(b) permits a case to be removed within the requisite
thirty-day limitations period if “all defendants who have been properly joined and served
. . . join in or consent to the removal of the action.”20 Because the exercise of removal
jurisdiction raises significant federalism concerns, courts construe the requirements of
§ 1446(b) strictly.21
In line with this strict construction, the Fifth Circuit interprets § 1446(b)(2)(A) as
requiring that, in suits with more than one defendant, all served and properly joined
defendants must consent to removal.22 Accordingly, a failure of all defendants who have
been served to timely consent to removal renders the removal defective.23 Under this “rule
of unanimity,” it is not necessary for each defendant to sign the original petition for
removal.24 However, as the Fifth Circuit explained in Getty Oil Corp. v. Ins. Co. of N.A.,
each defendant must “itself” consent to removal and “there must be some timely filed
written indication from each served defendant, or from some person or entity purporting
19 28 U.S.C. § 1446(b)(1)-(2)(B).
20 Id.
21 See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Eastus v. Blue Bell Creameries,
L.P., 97 F.3d 100, 106 (5th Cir. 1996).
22 Getty Oil Corp. v. Ins. Co. of N.A., 841 F.2d 1254, 1262 (5th Cir. 1988) (citing Brown v. Demco, Inc., 792
F.2d 478, 481 (5th Cir.1986)).
23 Id.
24 Id.
to formally act on its behalf in this respect and to have authority to do so.”25 “Otherwise,
there would be nothing on the record to ‘bind’ the allegedly consenting defendant.”26
There are several exceptions to the general rule requiring all defendants to join in
or consent to removal, including: “(1) the non-joining defendant has not been served with
service of process at the time the removal petition is filed; (2) the non-joining defendant
is merely a nominal or formal party; and, (3) the removed claim is a separate and
independent claim as defined by 28 U.S.C. § 1441(c).”27 If a removing defendant claims
one of these exception applies, the defendant must include in its notice of removal “the
reason why a defendant named in such action has not joined the petition for removal.”28
“A petition for removal filed by less than all defendants is considered defective if it does
not contain an explanation for the non-joinder of those defendants.”29
Written indication of consent to removal is “untimely” if it is not provided within
the thirty-day limitations period set forth in § 1446(b). The Fifth Circuit has recognized
that the timeliness requirement set forth in § 1446(b) may only be excused under
“exceptional circumstances.” 30 “[T]hose instances where [the Fifth Circuit] has exercised
its equitable powers to permit a party to consent to removal outside of the statutorily
prescribed time frame often concern plaintiff[s’] conduct, and not untimely consent to
removal by a defendant.”31 Indeed, as another section of this court has observed, “[t]he
25 Id. at 1262 n.11 (emphasis added).
26 Id.
27 Courtney v. Benedetto, 627 F. Supp. 523, 526 (M.D. La. 1986) (citing Mason v. International Business
Machines & RTKL, 543 F. Supp. 444, 446 n.1. (M.D.N.C. 1982); Albonetti v. GAF Corporation—Chemical
Group, 520 F. Supp. 825, 827 (S.D. Tex.1981)).
28 Id. (citations omitted).
29 Id. (citations omitted).
30 Getty Oil, 841 F.2d at 1263 n. 12 (citations omitted).
31 Ortiz v. Young, 431 F. App'x 306, 307 (5th Cir. 2011).
few district courts that have found exceptional circumstances generally confronted
situations involving bad faith, forum manipulation, and lost filings.”32
In this case, the Removing Defendants contend “[r]ight after Defendants filed their
Notice of Removal on March 10, 2020, Defendants’ counsel received a phone call from
Progressive’s counsel stating that they consented to the removal.”33 However, the
Removing Defendants have provided no written indication showing Progressive itself
consented to removal, as required by Getty Oil. Likewise, “nothing in the record, except
[the Removing Defendant’s] unsupported statement in the original removal petition,
indicates that [Allstate] actually consented to removal when the original petition was
filed.”34 In Getty Oil, the Fifth Circuit expressly held a removing defendant’s mere
assertion in its notice of removal that its codefendant consented to removal is insufficient
to satisfy the writing requirement. 35 Without written indication of consent from
Progressive and Allstate, “there [is] nothing on the record to ‘bind’ the allegedly
consenting [non-removing] defendant[s],”36 and the Court can only speculate as to
whether Progressive and Allstate actually gave consent to the removal. Such speculative
compliance with § 1446(b) clearly does not comport with a strict construction of the
requirements of § 1446(b).
To be certain, Allstate and Progressive were indeed required to give their written
consent to removal, as none of the exceptions to the general rule requiring all defendants
32 Alford v. Chevron U.S.A. Inc., Civil Action No. 13–5457, 2014 WL 37600, at *7 (E.D. La. Jan. 6, 2014)
(citing Turner v. Mine Safety Appliances Co., No. 01–0325, 2001 WL 456351, at *3 (E.D. La. Apr. 27, 2001);
Prescott v. Mem'l Med. Center–Livingston, No. 9:00CV–0025, 2000 WL 532035, at *5 n. 8 (E.D. Tex.
Mar.25, 2000)).
33 R. Doc 13 at 7 (emphasis added).
34 See Getty Oil, 841 F.2d at 1262 n.11.
35 Id.
36 See id.
to join in or consent to removal apply in this case. The Removing Defendants concede the
non-joining defendants, Progressive and Allstate, were served with service of process at
the time the Notice of Removal was filed.37 Further, the Removing Defendants do not
contend, nor would it be accurate to say, that either Progressive or Allstate is merely a
nominal defendant. Finally, the removed claims are not separate and independent claims
as defined by 28 U.S.C. § 1441(c).
Additionally, no “exceptional circumstances” warrant excusal from the timeliness
requirement imposed by § 1446(b), as nothing in the record reflects—nor do the
Removing Defendants allege—that dilatory tactics on the part of Plaintiff such as bad faith
or forum manipulation prevented the Removing Defendants from timely obtaining
Allstate’s or Progressive’s timely written consent to removal.
In their opposition to the Motion to Remand, the Removing Defendants argue that,
if the Court finds they did not timely obtain Progressive’s consent, “then Defendants can
still show that they affirmatively explained why it failed to receive Progressive’s consent
in their Notice of Removal, which is all that is required under federal law.”38 In support
of their position, the Removing Defendants cite as support P-Nut Carter’s Fireworks, Inc.
v. Carey.39 P-Nut involved one of the three exceptions to the general rule requiring all
defendants to join in or consent to removal, discussed supra. The P-Nut court explained
that, in order to fit within the nominal defendant exception, removing defendants “must
affirmatively explain the absence of his codefendant in the removal petition; otherwise,
37 R. Doc. 1 at ¶ IV.
38 R. Doc. 13 at 7.
39 685 F. Supp. 952, 953 (D.S.C. 1988).
the removal petition is rendered defective.” 40 As discussed above, the Removing
Defendants in this case do not allege, nor would it be to say accurate, that either
Progressive or Allstate is a nominal defendant. As a result, the P-Nut case is inapplicable
in this case.
Even assuming the Removing Defendants are correct that this case was otherwise
removable, the Removing Defendants cannot cure the written consent deficiency by now
amending their Notice of Removal. The right to amend removal petitions to show
jurisdiction “after the thirty day period set forth in 28 U.S.C. § 1446(b) is considered
limited and cannot be used to cure ‘a substantial defect in removal proceedings.’”41
“[F]ailure to join in or consent to removal [after the lapse of the thirty-day period under
1446(b)] [is] a substantial defect in the removal proceeding.”42 In this case, the petition
was served on defendants on February 11, 2020, and, as a result, the thirty-day limitations
period under § 1446(b) has lapsed. The Removing Defendants failed to file any written
indication of Allstate’s or Progressive’s consent to removal before the expiration of the
thirty-day period, or anytime thereafter. Because the thirty-day limitations period under
§ 1446(b) has lapsed, the Removing Defendants are not entitled to amend their Notice of
Removal to provide written indication of Allstate’s and Progressive’s consent to removal,
assuming any such writings exist.43
Accordingly;
40 Id. (citations omitted) (remanding a case to state court, explaining the removing defendant failed to
“affirmatively explain the absence of his codefendant in the removal petition” and “a timely cure of the
petition has not been made within the thirty-day period provided for in 28 U.S.C. § 1446”).
41 Courtney, 627 F. Supp. at 527 (quoting Mason, 543 F. Supp. at 446).
42 Id.
43 Because the Court finds remand appropriate on the ground that the unanimous consent requirement of
§ 1446(b)(2)(A) is not satisfied, the Court need not address Plaintiff’s other ground for remand, failure to
demonstrate the amount-in-controversy exceeds $75,000, as required under 28 U.S.C. § 1332.
CONCLUSION
IT IS ORDERED that Plaintiffs Motion to Remand‘ this case to state court is
hereby GRANTED.
New Orleans, Louisiana, this 21st day of May, 2020.
SUSIE ne
UNITED STATES DISTRICT JUDGE
44R, Doc. 7.