Holden v. Serco Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

AKEM HOLDEN CIVIL ACTION

VERSUS NO. 21-1661

SERCO INC., ET AL SECTION D (2)

ORDER AND REASONS

Before the Court is Plaintiff Akem Holden’s Motion to Remand.1 Defendants

John C. Tedder-Hairfield (“Hairfield”), Serco, Inc. (“Serco”) and ACE American

Insurance Company (“Chubb”) have filed an Opposition.2 Plaintiff has filed a Reply.3

After careful consideration of the parties’ briefs, the record, and the applicable law,

the Court DENIES the Motion.

I. FACTUAL BACKGROUND

This action arises out of a vehicular accident that occurred on January 8, 2020

when Plaintiff, Akem Holden, rear-ended a parked 2016 Ford F250 truck owned by

Defendant Serco.4 The Serco truck was stopped in the left lane of I-10 eastbound on

the “Twin Span” bridge, between New Orleans East and Slidell, in response to a 911

call regarding construction debris blocking the road-way in that lane, specifically, a

construction ladder.5 The driver of the Serco truck, Defendant John Tedder-Hairfield,

purportedly turned on the vehicle’s emergency lights as well as an amber sign board

1 R. Doc. 6.

2 R. Doc. 10.

3 R. Doc. 14.

4 R. Doc. 1-1.

5 Id.

to alert other drivers to switch lanes and avoid the parked truck.6 Plaintiff claims he

was unable to avoid the Serco vehicle because its lights were not on. He rear-ended

the truck at 69 miles per hour.7

Plaintiff filed this lawsuit in state court on October 19, 2020 naming three

defendants: (1) Serco, Inc.; (2) Ace American Insurance Company; and (3) driver John

Tedder-Hairfield.8 He served two Defendants, Serco and Chubb,9 who filed their

responsive pleading in state court on January 26, 2021.10 The civil sheriff was unable

to serve Defendant Tedder-Hairfield, a non-resident. On June 25, 2021, Plaintiff’s

counsel sent a letter to the Clerk of Court explaining that Tedder-Hairfield was

unable to be served via private process server and requested that the court re-issue

the citation via the Louisiana Long Arm Statute.11 According to an Affidavit filed by

Plaintiff, Plaintiff effected service on Tedder-Hairfield under the Louisiana Long Arm

Statute on July 20, 2021.12 Service was delivered to Tedder-Hairfield on August 4,

2021.13 Subsequently, Hurricane Ida reached Louisiana on August 29, 2021,

prompting an Eastern District of Louisiana court order interrupting filing

deadlines.14 Tedder-Hairfield filed a Notice of Removal on September 7, 2021 and the

case was removed to federal court.15

6 Id.

7 Id.

8 Id. Defendant Tedder-Hairfield was erroneously identified as Tedder-Haimfield in the state court

pleadings.

9 Id.

10 Id.

11 R. Doc. 6-5.

12 R. Doc. 6-6.

13 Id.

14 USDC-EDLA General Order No. 21-12 (2021).

15 R. Doc. 1.

Plaintiff has filed a Motion to Remand.16 Plaintiff argues that Defendant.

Tedder-Hairfield’s removal was improper because he failed to file his Notice of

Removal within the thirty-day time limit mandated by 28 U.S.C. § 1446(b)(3).17

Plaintiff asserts that Tedder-Hairfield was served on July 20, 2021 upon mailing of

the citation and complaint, and thus the thirty day time limit to file a Notice of

Removal expired on August 19, 2021.18 Plaintiff notes that Tedder-Hairfield did not

file his Notice of Removal until September 7, 2021.19 Plaintiff also argues that this

Court’s General Order 21-12 improperly suspended and extended all filing deadlines

following Hurricane Ida.20

Defendants have filed a joint Response.21 Defendants argue that service is not

effected upon the mere mailing of the citation and complaint to a party, but rather

when the citation and complaint are actually received by the party.22 Accordingly,

Defendants argue that the thirty-day time limit to remove the case did not start until

Defendant Tedder-Hairfield received a copy of the citation and complaint, which

occurred on August 4, 2021.23 Defendants further contend that this Court’s General

Order 21-12 properly suspended and extended all filing deadlines in the wake of

Hurricane Ida for thirty days beginning on August 26, 2021.24 Thus, defendants

16 R. Doc. 6.

17 Id.

18 Id.

19 Id.

20 Id.

21 R. Doc. 10.

22 Id.

23 Id.

24 Id.

assert that Tedder-Hairfield’s Notice of Removal was timely filed on September 7,

2021.25

Plaintiff has filed a Reply.26 Plaintiff initially disputes defendants’ reading of

controlling Supreme Court jurisprudence, Murphy Brothers, Inc. v. Michetti Pipe

Stringing, Inc., regarding when service is effected.27 Further, Plaintiff asserts that

removal was untimely because General Order 21-12 was inapplicable because the

Eastern District of Louisiana’s clerk’s office was not inaccessible as required by

Federal Rule of Civil Procedure 6(a).28 Plaintiff further argues that the Eastern

District of Louisiana lacks the authority to promulgate a General Order that

contradicts a filing deadline established by federal law.29

II. LEGAL STANDARD

A. Removal

A defendant may remove “any civil action brought in a State court of which the

district courts of the United States have original jurisdiction.”30 When original

jurisdiction is based on diversity of citizenship, the cause of action must be between

“citizens of different states” and the amount in controversy must exceed the “sum or

value of $75,000, exclusive of interest and costs.”31 “When a civil action is removed

solely under section 1441(a), all defendants who have been properly joined and served

25 Id.

26 R. Doc. 14.

27 Id.; see Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).

28 Id.

29 Id.

30 28 U.S.C. § 1441(a).

31 28 U.S.C. § 1332(a)-(a)(1).

must join in or consent to the removal of the action to federal court.”32 The removal

statute is strictly construed and any doubt as to the propriety of removal should be

resolved in favor of remand.33 The removing party has the burden of proving federal

diversity jurisdiction.34 Remand is proper if at any time the court lacks subject matter

jurisdiction.35

B. Timeliness of Removal

“A 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…”36 However, “if the case stated by the initial pleading is not removable, a

notice of removal may be filed within 30 days after the receipt by the defendant,

through service or otherwise, of a copy of an amended pleading, motion, order or other

paper from which it may first be ascertained that the case is one which is or has

become removable.”37

III. ANALYSIS

Plaintiff and Defendants agree there is complete diversity and that the amount

in controversy exceeds the sum of $75,000.38 Therefore, the Court limits its analysis

to whether Defendant Tedder-Hairfield’s Notice of Removal was timely filed.

32 28 U.S.C. § 1446(b)(2)(A).

33 Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).

34 Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003).

35 See 28 U.S.C. § 1447(c).

36 28 U.S.C. § 1446(b)(1).

37 28 U.S.C. § 1446(b)(3).

38 Plaintiff is a Louisiana resident. Defendant Serco is a Virginia corporation with its principal place

of business in Virginia. Defendant Chubb is a Pennsylvania company with its principal place of

A. Service under the Louisiana Long Arm Statute

The Federal Rules of Civil Procedure provide that individuals within a judicial

district of the United States may be served process by delivery pursuant to the state

law where the district court sits.39 The Louisiana Long–Arm Statute provides that a

certified copy of the citation and complaint “shall be sent by counsel for the plaintiff,

or by the plaintiff if not represented by counsel, to the defendant by registered or

certified mail, or actually delivered to the defendant by commercial courier, when the

person to be served is located outside of this state.”40

“Under the clear wording of [the Louisiana Long–Arm Statute], all that is

necessary to constitute service upon a non-resident ... is that counsel for plaintiff send

a certified copy of the citation and of the petition in the suit to the defendant by

registered certified mail ... There is ... no requirement for a signed return receipt.”41

“[W]hen the plaintiff's counsel sends a copy of the citation and petition to the

defendant by registered mail, such service has the same legal force and validity as

person service made on the defendant within the state.”42

In the present case, Plaintiff and Defendant dispute when precisely service

was effected. Plaintiff argues that service was effected as soon as the certified copy of

business in Pennsylvania. Defendant Tedder-Hairfield is a Tennessee resident. Old American County

Mutual Fire Insurance Company, named as a Defendant by Serco and Chubb in their Reconventional

Demand, is a Missouri corporation with its principal place of business in Missouri.

39 Fed. R. Civ. Proc. 4(e)(1).

40 La.Rev.Stat. § 13:3204(A).

41 Thomas Organ Co v. Universal Music Co., 261 So.2d 323, 327 (La.Ct.App.1972).

42 McFarland v. Dippel, 1999–0584, p. 5 (La.App. 1 Cir. 3/31/00); 756 So.2d 618, 622.

the citation and complaint were mailed to the Defendant.43 Conversely, Defendant

argues that service was not effected until the Defendant received a copy of the

certified citation and complaint in the mail.44

Here, Louisiana law clearly states that service is effected upon the mailing of

a certified copy of the citation and complaint to the defendant. In Matt v. Culpepper,

this Court held that the plaintiff effected service on the defendant under the

Louisiana Long–Arm statute when the plaintiff sent a certified copy of the citation

and complaint via certified mail to the defendant’s address.45 The court explained

that “the long-arm statute does not require proof of receipt by signature when service

is made via certified or registered USPS mail and there is no doubt as to the

correctness of the address.”46 Similarly, in James v. Progressive Specialty Ins. Co.,

this Court held that “to satisfy the Louisiana long-arm statute, plaintiffs need only

send a certified copy of the summons and complaint to a non-resident defendant by

registered or certified mail; there is no requirement for a signed return receipt or

actual physical service.”47

Louisiana state courts have likewise followed suit. “[A]ll that is necessary to

constitute service upon a non-resident under the long-arm statute is that counsel for

the plaintiff send a certified copy of the citation and of the petition in the suit to the

43 R. Doc. 6.

44 R. Doc. 10.

45 No. 14-1464, 2014 WL 5816930, at *2–3 (E.D. La. Nov. 7, 2014).

46 Id.

47 No. 19-2288, 2019 WL 6728343, at *1 (E.D.LA. Dec. 11, 2019) (citing Major v. Patriot Disaster Servs.

LLC, 2017 WL 457656, at *3-4 (M.D. La. Feb. 2, 2017)) (holding that plaintiffs’ certified mailing of

process to address for defendant provided by defense counsel fulfilled the requirements of Louisiana's

long-arm statute).

defendant by registered or certified mail, or actually deliver it in person.”48 In another

case, a Louisiana court found that the plaintiff's attorney had mailed certified copies

of the citation and the complaint by certified mail to the defendant and there was no

indication that plaintiff's attorney had sent it to the wrong address.49 The court thus

held service was proper and personal jurisdiction was established because

defendant's non-receipt of the citation did not determine the issue of personal

jurisdiction.50

Accordingly, in keeping with the law of this district as well as Louisiana,

service was effected on Defendant as soon as Plaintiff mailed a certified copy of the

citation and complaint by certified mail to the Defendant. Here, service occurred on

July 20, 2021 when Plaintiff mailed a certified copy of the citation and complaint by

certified mail to Defendant Tedder-Hairfield.51

B. Timeliness of Removal

Having determined the date of service, the Court must next evaluate when the

time to file a Notice of Removal begins to accrue.

28 U.S.C. § 1446(b)(1) states that the Notice of Removal of a civil action or

proceeding shall be filed within 30 days after the receipt by the defendant, through

48 McFarland v. Dippel, 756 So. 2d 618, 622 (La. App. 1st Cir. 2000).

49 HTS, Inc. v. Seahawk Oil & Gas, Inc., 2004–892, p. 3 (La.App. 3 Cir. 12/8/04); 889 So.2d 442, 444–

45.

50 Id.

51 R. Doc. 6.

service or otherwise, of a copy of the initial pleading setting forth the claim for relief

upon which such action or proceeding is based.52

Both Plaintiff and Defendant rely on the U.S. Supreme Court’s decision in

Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. to establish the date when the

removal deadline begins. Defendant relies on Murphy Brothers for the proposition

that the defendant must receive a copy of the petition and summons before the thirty-

day time limit to remove a case under 28 U.S.C. § 1446(b) begins and that mere

service of the petition by mail is inadequate to start that time limit.53

Plaintiff disagrees with Defendant’s reading of Murphy Brothers and states

that simultaneous service of the summons or complaint can start the removal

deadline.54 Plaintiff argues that in Murphy Brothers, the Supreme Court explained

that the date of service starts the deadline to remove, in this case when the Plaintiff

mailed a certified copy of the petition and summons by certified mail to the

Defendant.55

The Court is persuaded that the Defendant’s reading of Murphy Brothers is

proper. The Court in Murphy Brothers emphasized access to the complaint, whether

through receipt of service or other means (such as if the complaint has been filed into

the record) and its importance in providing defendants “adequate time to decide

whether to remove an action to federal court.”56 The Court explained that Congress

52 28 U.S.C. § 1446(b)(1).

53 R. Doc. 10 (citing 526 U.S. 344, 347-48 (1999)).

54 R. Doc. 6.

55 R. Doc. 14.

56 526 U.S. 344 at 354.

enacted the current version of 28 U.S.C. § 1446(b) “to ensure that the defendant would

have access to the complaint before commencement of the removal period.”57

In keeping with this ruling, courts apply the “receipt rule” to determine when

the time requirement to file a Notice of Removal begins. The “receipt rule” states that

the thirty-day period for removing a state court action begins to run when the

defendant actually receives the plaintiff’s petition, rather than on the date when the

agent of service is served.58 Other district courts in Louisiana have issued similar

rulings in keeping with the “receipt rule.” Courts in the Middle and Western Districts

of Louisiana have held that a defendant must actually receive a copy of the initial

pleading to trigger the 30-day period to remove an action where service is made on a

statutory agent under state law.59

Here, Defendant Tedder-Hairfield did not receive a copy of the citation and the

complaint until August 4, 2021.60 Accordingly, under the “receipt rule,” the thirty-

day time period for Tedder-Hairfield to file a Notice of Removal began on that same

57 Id. at 351-52.

58 Hibernia Community Development Corp., Inc. v. U.S.E. Community Services Group, Inc., 166 F.

Supp. 2d 511 (E.D. La. 2001) (finding that the thirty-day period for removing a state court action began

to run when insurer actually received plaintiffs' petition, rather than on date on which state's secretary

of state, as insurer's statutory agent, was served); see also McKnight v. Illinois Cent. R.R., 967 F. Supp.

182 (E.D. La. 1997) (stating that the thirty-day period for removing cases to federal court begins when

defendant receives copy of initial pleading through any means, not just service of process).

59 See, e.g., First Choice Surgery Ctr. of Baton Rouge, LLC v. United Healthcare Servs., Inc., No. 12-

0065, 2012 WL 3109483, at *3 (M.D. La. July 30, 2012) (notice of removal was timely filed based on

defendant’s actual receipt of initial petition from Louisiana Secretary of State); see also Brown v. S.L.

Netterville Logging, Inc., No. 09-200, 2009 WL 1875755, at *3 (M.D. La. June 26, 2009) (“Several

district courts in the Fifth Circuit have . . . concluded that the time for removal commences when the

defendant actually receives formal process, as opposed to when service is made on the Secretary of

State as the defendant’s statutory agent.”); see also Manuel v. Unum Life Ins. Co. of Am., 932 F.Supp.

784 (W.D. La.1996) (holding that the “thirty day period in which defendant can remove commences on

defendant's actual receipt of a copy of the pleading”).

60 See R. Doc. 10.

day. Thus, the Notice of Removal was required to be filed by September 3, 2021.

Defendant’s Notice of Removal was filed on September 7, 2021.

C. General Order 21-12

Hurricane Ida made landfall in Louisiana on August 29, 2021. On September

4, 2021, Chief Judge Nannette Brown issued General Order 21-12, suspending all

deadlines and delays, including prescriptive and peremptive periods, for a period of

thirty days commencing from August 26, 2021.61

Relying on a footnote in a factually dissimilar case which states that “[n]either

state nor federal courts can extend the statutory period of time within which cases

may be removed to federal court,”62 Plaintiff argues that the district court lacks the

authority to suspend or delay filing deadlines created in accordance with federal law,

in this case 28 U.S.C. § 1446(b).63 Plaintiff further claims that the Eastern District of

Louisiana clerk’s office was accessible at all times and that counsel for Defendant was

capable of filing its Notice of Removal remotely or from its Lafayette office.64

Defendant counters that Federal Rule of Civil Procedure 6 authorizes federal

courts to suspend deadlines when the clerk’s office is inaccessible, as was the case

following Hurricane Ida as well as during past hurricanes, including Hurricane

Katrina and Hurricane Rita.65 Defendant notes that its office, located in downtown

61 USDC-EDLA General Order No. 21-12 (2021).

62 Wawrzycki v. Bales, No. 19-12278, 2019 WL 4894557 (E.D. La. October 4, 2019).

63 R. Doc. 6.

64 R. Doc. 14.

65 R. Doc. 10.

New Orleans, was closed in the wake of Hurricane Ida and that it filed its Notice of

Removal on the first possible day following the hurricane.66

Federal Rule of Civil Procedure 6(a)(3)(A) allows for an extension of time to

file, if the clerk’s office is inaccessible, until “the first accessible day that is not a

Saturday, Sunday, or legal holiday.”67 The filer must file on the first day following

the inaccessibility.68 Effective August 26, 2021, this Court suspended all filing

deadlines for a period of thirty days (from August 26 through September 27, 2021) by

General Order 21-12 issued by Chief Judge Brown.69 That Order provided, “All

deadlines and delays, including prescriptive and preemptive periods, in cases pending

or to be filed in this Court are hereby suspended for thirty (30) days commencing from

August 26, 2021.”70 The Order included that “the Court finds that the federal

courthouse and the office of the Clerk of Court, were/are not meaningfully accessible

within the meaning of Federal Rule of Civil Procedure 6(a) and Federal Rule of

Appellate Procedure 26(a) for the period of time beginning on August 26, 2021 and

continuing for thirty (30) days thereafter.”71

This Court has previously upheld General Order 21-12. In Pursley v. Lawrence,

this Court cited General Order 21-12 and determined that it suspended a defendant’s

one year time limit to file a Notice of Removal based on diversity under 28 U.S.C. §

66 Id.

67 Fed. R. Civ. P. 6(a)(3)(A).

68 Id.

69 USDC-EDLA General Order No. 21-12 (2021).

70 Id.

71 Id.

1446(c)(1).72 The district court in Pursley relied on the “near-identical language in a

general order issued . . . in the wake of Hurricane Katrina.”73 In Brown v. City of New

Orleans, following both Hurricanes Katrina and Rita, the court considered an order

issued by Chief Judge Helen G. Berrigan which suspended all deadlines and delays,

including liberative prescription and peremptive periods in cases pending or to be

filed in the Eastern District of Louisiana.74 The Court held that Judge Berrigan’s

order suspending deadlines was applicable and Plaintiff’s late-filed petition was thus

timely.75

Similar court closures and suspensions of filing deadlines were also enacted in

Louisiana state courts. On August 26, 2021, the Governor of Louisiana instituted a

State of Emergency due to the impending Hurricane Ida.76 Following that initial

Proclamation, on September 6, 2021, Governor Edwards signed an additional

Executive Order, Proclamation 170 JBE 2021, which provided, “Legal deadlines

applicable to legal proceedings in all courts, administrative agencies, and boards, are

hereby suspended until September 24, 2021… Unless otherwise provided in this

order, these provisions are effective from Thursday, August 26, 2021 to Friday,

September 24, 2021.”77

72 No. 21-1776, 2021 WL 5231871 at *4 (E.D. La. Nov. 10, 2021).

73 Id.

74 No. 16-17080, 2007 WL 2480984 (E.D. La. Aug. 30, 2007).

75 Id.

76 Louisiana Proclamation No. 165 JBE 2021 (2021).

77 Louisiana Proclamation No. 170 JBE 2021 (2021).

The Federal Rules contemplate time extensions when the clerk’s office is

“inaccessible.””8 General Order 21-12 specifically stated that the federal courthouse

and the office of the Clerk of Court were not meaningfully accessible within the

meaning of Federal Rule of Civil Procedure 6(a).79 Thus, this Court properly invoked

its authority under Federal Rule of Civil Procedure 6(a) and suspended and extended

all filing deadlines. Plaintiff's argument to the contrary is unavailing.

Accordingly, Defendant Tedder-Hairfield’s deadline to file his Notice of

Removal was extended from September 3, 2021 to September 27, 2021. Defendant

Tedder-Hairfield filed his Notice of Removal on September 7, 2021, within this

extended period.®° Defendant’s Notice of Removal was timely filed.

IV. CONCLUSION

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

New Orleans, Louisiana, January 11, 2022.

(kn B. bit

United States District Judge

79 Id.

80 See R. Doc. 10.