Opinion

Snow v. Deveroux

Court
District Court, E.D. Louisiana
Filed
Jul 29, 2020
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ERIN KENNEDY SNOW CIVIL ACTION

VERSUS NO. 20-550

NATALIE DEVEROUX, ET AL. SECTION "L" (5)

ORDER AND REASONS

I. BACKGROUND: MOTOR VEHICLE ACCIDENT

Pending before the Court is Plaintiff’s Motion to Remand, R. Doc. 7. This case arises out

of a motor vehicle accident that occurred on or about February 23, 2018. R. Doc. 1-1. Plaintiff

claims that Defendant Deveroux attempted to cross an intersection, entered into the lane where

Plaintiff was driving, and then collided with Plaintiff’s vehicle. R. Doc. 1-1 at 2. Plaintiff argues

she was driving in a “safe and cautious manner” at all times relevant to this collision. R. Doc. 1-1

at 2. Plaintiff points out that Ms. Deveroux “was cit[ed] for careless operation in causing the

accident in question.” R. Doc. 1-1 at 2.

Plaintiff claims that Ms. Deveroux’s conduct amounts to negligence due to alleged

inattentiveness while operating a motor vehicle, failure to yield right of way, failure to keep a

proper lookout, and failure to check for passing traffic prior to entering an intersection, among

other allegations. R. Doc. 1-1 at 2. Plaintiff argues that she suffered physical injuries including

traumatic brain injury, injury to her cervical spine-sprain-strain-whiplash, bilateral knee injuries,

and injuries to the cervical spine and trapezius muscles, due to Ms. Deveroux’s negligence. R.

Doc. 1-1 at 2-3. Further, Plaintiff claims she experienced injuries associated with pain and

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suffering, as well as past, present, and future losses due to medical bills, emotional distress, and

wages and/or earning capacity, among several other claims. R. Doc. 1-1 at 3.

On February 20, 2019, Plaintiff filed suit against defendants in the Civil District Court for

the Parish of Orleans. R. Doc. 1-1. The Defendants included Ms. Deveroux, who is domiciled in

California; Ms. Deveroux’s alleged automobile insurer, Interinsurance Exchange of the

Automobile Club of Southern California (“Interinsurance”); and Ace Insurance Company of the

Midwest (“ACE”), which is Plaintiff’s alleged underinsured/uninsured motorist insurance policy

issuer. R. Doc. 1-1 at 4. On April 15, 2019, Plaintiff supplemented and amended her Petition for

Damages, adding State Farm Mutual Automobile Insurance Company (“State Farm”) as an

additional defendant. R. Doc. 1-3 at 2. Plaintiff claims she was insured under a State Farm

Uninsured Economic Only policy at the time of the accident. R. Doc. 1-3 at 2. Plaintiff seeks

damages plus interest, costs of proceedings, fees of witnesses, costs of medical records, and court

costs. R. Doc. 1-1 at 4.

On June 14, 2019, Ms. Deveroux and Interinsurance answered Plaintiff’s original and

amended petitions for damages. R. Doc. 1-3 at 24-27. In their answer, Interinsurance generally

denies liability, but admits that it is a foreign insurer and that Ms. Deveroux held an insurance

policy with Interinsurance at the time of the incident. R. Doc. 1-3 at 24. Further, Interinsurance

and Ms. Deveroux asserted a number of affirmative defenses. R. Doc. 1-3 at 3. On June 14, 2019,

Ace also answered plaintiff’s petition for damages. R. Doc. 1-3 at 31-34. Ace generally denied all

liability but admitted it is a foreign insurance company authorized to do business in Louisiana. R.

Doc. 1-3 at 31-33. Ace also asserted affirmative defenses. R. Doc. 1-3 at 3.

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On February 3, 2020, Ms. Deveroux and Interinsurance were dismissed from the state court

lawsuit. R. Doc. 7-5. Ace removed the lawsuit to this Court on February 14, 2020, on the grounds

of diversity and amount in controversy pursuant to 28 U.S.C. § 1332(a). R. Doc. 1.

II. PRESENT MOTION

A. Plaintiff’s Motion to Remand [R. Doc. 7]

On June 23, 2020, Plaintiff filed a Motion to Remand, R. Doc. 7. Plaintiff seeks to remand

the case to the Civil District Court for the Parish of Orleans, arguing that all Defendants failed “to

join in or consent to the Notice of Removal filed by [Ace] within the 30-day period for removal,”

as required by 28 U.S.C. § 1446(b)(2)(A). R. Doc. 7 at 2. Specifically, Plaintiff claims the record

does not show that State Farm joined or consented to removal. R. Doc. 7 at 2. Plaintiff argues that

the Fifth Circuit strictly construes § 1446(b)(2)(A) and requires all defendants’ written consent

upon removal. R. Doc. 7-2 at 2-3. Additionally, Plaintiff believes that even if State Farm’s

untimely consent were obtained, Ace’s removal would still be procedurally improper. R. Doc. 7 at

2.

On June 25, 2020, Plaintiff filed a Supplemental Memorandum to attach proof of service

of the amended petition for damages on State Farm. R. Doc. 9-2. This filing showed May 10, 2019

as the actual date of service. R. Doc. 12.

B. Defendant ACE’s Opposition to Plaintiff’s Motion to Remand [R. Doc. 13]

Ace filed an opposition to Plaintiff’s Motion to Remand on June 30, 2020. R. Doc. 13.

ACE opposes the motion on the grounds that: (1) Plaintiff did not file the Motion to Remand within

thirty days of the Notice of Removal; and (2) “Plaintiff has not alleged any defects in subject matter

jurisdiction.” R. Doc. 13 at 1. Ace concedes that its Notice of Removal does not address State

Farm. R. Doc. 13 at 2. Ace notes that “State Farm has not answered the suit, nor have they even

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interacted with any of the parties to the suit to the best of Defendant’s knowledge.” R. Doc. 13 at

2.

ACE argues that Plaintiff has waived her right to request remand on the grounds of

procedural defects, such as lack of consent of all parties to removal. R. Doc. 13 at 2. Ace argues

that Plaintiff was required to file her motion to remand on or before March 16, 2020, which is

thirty days after Ace filed its Notice of Removal. R. Doc. 13 at 2. Ace points out that Plaintiff filed

the Motion to Remand on June 23, 2020, or 130 days after removal, so the motion is untimely and

should be denied. R. Doc. 13 at 2. Ace contends that Plaintiff waived her right to remand this case

based on a procedural defect. R. Doc. 13 at 2.

Second, ACE argues that there are no defects in this Court’s subject matter jurisdiction

over the case. R. Doc. 13 at 3. Ace contends that the inclusion of State Farm does not destroy

diversity because State Farm is a citizen of Illinois, while Plaintiff is a citizen of Louisiana and

Ace is a citizen of Indiana and Pennsylvania. R. Doc. 13 at 3. Further, Defendant ACE asserts that

the amount in controversy requirement is also satisfied. R. Doc. 13 at 3. Ace notes that Plaintiff

has not alleged any defects in this Court’s subject matter jurisdiction. R. Doc. 13 at 1.

III. LAW & ANALYSIS

“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of

America, 511 U.S. 375, 377 (1994). Thus, this Court “may not exercise that jurisdiction absent a

statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). 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). Pursuant to 28 U.S.C. § 1332(a), a federal district

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). Complete diversity

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exists where no plaintiff shares a state of citizenship with any defendant. McLaughlin v.

Mississippi Power Co., 376 F.3d 344, 353 (5th Cir. 2004). 28 U.S.C. § 1446(b)(2)(A) governs

removal procedure under 1441(a) and requires that “all defendants who have been properly joined

and served must join in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A).

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 in favor of remand, Acuna v. Brown & Root, Inc., 200 F.3d 335,

339 (5th Cir. 2000). Accordingly, the Court “must presume that a suit lies outside [its] limited

jurisdiction,” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001), and “[a]ny

ambiguities are construed against removal and in favor of remand to state court.” Mumfrey v. CVS

Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing Manguno v. Prudential Prop. & Cas.

Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). The removing party bears the burden of proving that

the court has subject matter jurisdiction over the removed case. See Jernigan v. Ashland Oil Inc.,

989 F.2d 812, 815 (5th Cir. 1993). “If at any time before final judgment it appears that the district

court lacks subject matter jurisdiction,” the case shall be remanded. 28 U.S.C. § 1447(c).

Conversely, the availability of remand on procedural grounds is limited, and courts may

grant remand only in certain circumstances. 29A KARL OAKES, FEDERAL PROCEDURE, LAWYERS

EDITION § 69:117 (2020 ed.). Remand on procedural grounds aims to cure “any defect that does

not go to the question of whether the case originally could have been brought in federal district

court.” Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir. 1991). A motion to remand

based on a procedural defect must be filed within 30 days of removal, otherwise “a district court

has no discretion to remand to state court.” Pavone v. Mississippi Riverboat Amusement Corp., 52

F.3d 560, 566 (5th Cir. 1995) (citing 28 U.S.C. § 1447(c)). If the motion to remand is untimely,

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the procedural defect is waived. Id. In contrast, defects in subject matter jurisdiction can never be

waived. Id.

Here, both Plaintiff and Ace agree that a procedural defect existed in Ace’s removal of this

lawsuit. Namely, Ace did not obtain the consent of or justify its lack of consent of defendant State

Farm when it removed the case on February 14, 2020. R. Doc. 1. Plaintiff filed the instant Motion

to Remand based on this procedural defect nearly 130 days after the case was removed, rather than

within the thirty-day deadline. R. Doc. 13 at 2; 28 U.S.C. § 1447(c). Moreover, Plaintiff asserted

no grounds on which additional time should have been granted to file the pending Motion to

Remand. The Fifth Circuit has clearly held that an existing procedural defect is waived when a

motion to remand is filed in an untimely manner. Pavone, 52 F.3d at 566. Therefore, the Court

finds that the procedural defect existing in Ace’s removal of this case is waived. The Court will

next address whether it has subject matter jurisdiction over this case.

In its opposition to Plaintiff’s Motion to Remand, Ace argues that there is no defect in this

Court’s subject matter jurisdiction because there is complete diversity and the amount in

controversy requirement is met. R. Doc. 13. Plaintiff does not dispute this or allege a subject matter

jurisdiction-based defect. The Court agrees that it has subject matter jurisdiction over this case.

Complete diversity exists because Plaintiff is a citizen of Louisiana, while State Farm is a citizen

of Illinois and Ace is a citizen of Indiana and Pennsylvania. R. Doc. 13 at 3. The parties have

stipulated that the amount in controversy exceeds $75,000. R. Doc. 1 at 3-6. Accordingly, both

requirements under 28 U.S.C. § 1332(a) have been met and the Court has subject matter

jurisdiction over this lawsuit.

IV. CONCLUSION

For the foregoing reasons,

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IT IS ORDERED that Plaintiff's Motion to Remand is DENIED.

New Orleans, Louisiana, this 29th day of July 2020.

Eldon E. Fallon

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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