Opinion

Rock v. Brown

Court
District Court, E.D. Louisiana
Filed
Sep 17, 2020
Cited by
0 cases
Authority
More cited than 22.3%

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.

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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