holding that all served defendants are required to join in petition for removal no later than 30 days from the date on which the first defendant was served
How later courts described this case
- holding that all served defendants are required to join in petition for removal no later than 30 days from the date on which the first defendant was served
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
COURTNEY ROCK AND BRIAN CIVIL ACTION
VAN EYCKE
NO: 20-940
VERSUS
SECTION: T(2)
TRACI BROWN, ELAINE DUSKIN,
GEICO CASUALTY COMPANY, ABC
INSURANCE COMPANY, ARTHUR
CLAYTON, PROGRESSIVE
CASUALTY INSURANCE COMPANY,
LYFT, INC., AND INDIAN HARBOR
INSURANCE COMPANY
ORDER
Before the Court is a Motion to Remand1 filed by Courtney Rock and Brian Van Eycke
(“Plaintiffs”). Indian Harbor Insurance Company (“Indian Harbor”) has filed an opposition.2 For
the following reasons, the Motion to Remand3 is GRANTED.
BACKGROUND
On January 6, 2020, Plaintiffs initiated this action in Orleans Parish Civil District Court
seeking damages arising out of an automobile accident.4 Plaintiffs named several defendants,
including Indian Harbor, Traci Brown, and Lyft, Inc. Traci Brown was served by the sheriff on
March 12, 2020. Lyft, Inc. was served on March 18, 2020. On March 18, 2020, Indian Harbor filed
a Notice of Removal removing the case to this Court.5 Plaintiffs oppose Indian Harbor’s removal
on two grounds: (1) that two properly joined and served defendants have not consented to removal;
and (2) that Indian Harbor failed to affirmatively allege citizenship of two defendants.
1 R. Doc. 3.
2 R. Doc. 14.
3 R. Doc. 3.
4 R. Doc. 1-1.
5 R. Doc. 1.
Courts should determine whether subject-matter jurisdiction is present before addressing
other issues.6 Federal Courts are courts of limited jurisdiction, possessing only the authority
granted by the United States Constitution and conferred by the United States Congress.7 A
defendant may remove a civil action filed in state court if the plaintiff could have brought the
action in federal court from the outset.8 Given the significant federalism concerns implicated by
removal, the removal statute is strictly construed, “and any doubt about the propriety of removal
must be resolved in favor of remand.”9 28 U.S.C. § 1332(a) provides that “district courts shall have
original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value
of $75,000...and is between citizens of different States.” Remand is proper if at any time the Court
lacks subject-matter jurisdiction.10
28 U.S.C. § 1446(b) creates a 30–day time limit for removal; the 30–day period is
mandatory and must be strictly construed.11 The “rule of unanimity” applies to removed cases with
multiple defendants: Absent exceptional circumstances, all served defendants must join or
otherwise file a written notice of consent to removal before the expiration of the 30–day removal
period in 28 U.S.C. § 1446.12 Applying the “first-served defendant” rule, the Fifth Circuit requires
that all defendants that have been served before removal must consent to removal within 30–days
after service of the first-served defendant.13 In order for all the defendants to “consent” to the
removal, it is not necessary for each of them to sign the original notice of removal, but “there must
6 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir.
1977) (per curiam)).
7 Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
8 See 28 U.S.C. § 1441(a).
9 Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (citation omitted); Gasch v. Hartford Accident & Indem.
Co., 491 F.3d 278, 281-82 (5th Cir. 2007) (citations omitted).
10 28 U.S.C. § 1447(c).
11 Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1263 (5th Cir.1988).
12 Id. at 1261–62.
13 Getty Oil, 841 F.2d at 1263 (holding that all served defendants are required to join in petition for removal no later
than 30 days from the date on which the first defendant was served).
be some timely filed written indication from each served defendant, or from some person or entity
purporting to formally act on its behalf in this respect and to have authority to do so, that it has
actually consented to such action.”14
In this case, Indian Harbor’s notice of removal concluded that all “Defendants who have
been properly joined and served with Plaintiff’s petitions consent to this removal.”15 Indian
Harbor’s notice of removal further represented that Lyft, Inc. and Traci Brown “have not been
properly joined and served.”16 However, Traci Brown was served by the sheriff several days
before Indian Harbor filed the notice of removal, and Lyft, Inc. was served on the same day
Indian Harbor filed the notice of removal. Indian Harbor’s notice of removal, therefore, fails to
meet the “rule of unanimity” because all served defendants did not consent to the removal, and
the notice of removal is procedurally defective.
CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that the Motion to Remand17 is
GRANTED.
New Orleans, Louisiana, on this 17th day of September, 2020.
GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE
14 Id. at 1262 n. 11.
15 R. Doc. 1, p.6.
16 R. Doc. 1, p.4.
17 R. Doc. 3.