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