The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TAMEICA BAKER, et al. CIVIL ACTION
NO. 23-2078
VERSUS
SECTION M (2)
AMAZON LOGISTICS, INC., et al.
ORDER & REASONS
Before the Court is a motion filed by plaintiffs Tameica Baker, Alrick Baker, Jr., Kalila
Baker,1 and Shushana Edwards2 (collectively, “Plaintiffs”) to remand this matter to the 24th
Judicial District Court, Parish of Jefferson, State of Louisiana.3 Defendants Amazon Logistics,
Inc. (“Amazon”) and Lancer Insurance Company (“Lancer”) respond in opposition,4 and Plaintiffs
reply in further support of their motion.5 Defendants file a surreply in further opposition to the
motion.6 Having considered the parties’ memoranda, the record, and the applicable law, this Court
issues this Order & Reasons granting Plaintiffs’ motion to remand.
I. BACKGROUND
This matter involves a claim against multiple defendants arising out of a car accident
eventuating in a fatality. On June 5, 2023, on Interstate 10 in Biloxi, Mississippi, Alrick Baker’s
vehicle was struck when an Amazon tractor trailer driven by Cynthia Kirksey attempted to pass
1 Tameica Baker, Alrick Baker, Jr., and Kalila Baker appear individually and on behalf of the decedent,
Alrick Baker, who was Tameica’s husband and Alrick Jr. and Kalila’s father.
2 Shushana Edwards brings claims on behalf of her minor children, who are also Alrick Sr.’s children.
3 R. Doc. 12.
4 R. Docs. 18; 19. Lancer adopts Amazon’s legal argument; therefore, the Court refers only to Amazon’s
opposition in this Order & Reasons.
5 R. Doc. 26.
6 R. Doc. 31.
him.7 As a result of the collision, Baker’s vehicle was forced off the roadway and burst into flames,
which caused significant burns to his body and ultimately led to his death.8
Plaintiffs brought this action in state court seeking damages for Baker’s death.9 Plaintiffs
assert that the accident was caused by Amazon’s negligence in failing to adhere to its obligations
and duties under the law and its contract with B3 Logistics, LLC (“B3”).10 In addition to naming
the Amazon entities,11 Plaintiffs sued B3, Brian Davis, Kirksey, Ontime Carriers, LLC, Lancer,
Prime Insurance Company (“Prime Insurance”), Great American Assurance Company (“Great
American”), Mohave Transportation Insurance Company, and five individual Amazon employees
(the “Amazon Supervisors”): Michael Davis, Murzuka Afrida, Justin Walker, Renee Mota, and
Germaine White.12
On June 15, 2023, Amazon removed the action to this Court on the basis of a diversity of
citizenship and an amount in controversy exceeding $75,000, exclusive of interest and costs.13 In
its notice of removal, Amazon contends that, although the Amazon Supervisors are said to be
citizens of Louisiana, their citizenship should not be considered in determining diversity
jurisdiction because, as employees of Amazon, none can be personally liable to Plaintiffs.14 Thus,
according to Amazon, Baker improperly joined the Amazon Supervisors to defeat federal diversity
subject-matter jurisdiction.15 Lancer filed a consent to removal on June 26, 2023.16 Together, B3
7 R. Doc. 12-3 at 7.
8 Id. at 8.
9 Id. at 1-18.
10 Id. at 9.
11 Plaintiffs sued Amazon.com, Inc., as well as Amazon. Id. at 2.
12 Id. at 2-4.
13 R. Doc. 4 at 1-3.
14 Id. at 5.
15 Id.
16 R. Doc. 9.
and Brian Davis filed a consent to removal on June 27, 2023.17 The next day Plaintiffs filed the
instant motion to remand.18
II. PENDING MOTION
In their motion to remand, Plaintiffs raise two issues with respect to Amazon’s removal.
First, Plaintiffs argue that the nondiverse Amazon Supervisors are properly joined, and, as a result,
this Court lacks subject-matter jurisdiction.19 Second, Plaintiffs assert that removal is improper
because Amazon did not obtain the consent of all served defendants prior to removal as required
by 28 U.S.C. § 1446(b)(2)(A).20 To their motion, Plaintiffs attach proofs of service on Brian Davis
(reflecting service on June 5, 2023), Renee Mota (June 12, 2023), Amazon (June 13, 2023), Lancer
(June 13, 2023), Great American (June 13, 2023), Prime Insurance (June 13, 2023), and Michael
Davis (June 20, 2023).21 With its § 1447 compliance memorandum filed on July 3, 2023, Amazon
submitted these same service returns as well as the completed return for defendant Germaine White
(reflecting service on June 1, 2023).22
In opposition to the motion to remand, Amazon argues that Plaintiffs’ complaint does not
state any valid claims against the Amazon Supervisors under Louisiana law, meaning, says
Amazon, that these nondiverse defendants are improperly joined and should be disregarded, and,
as a consequence, this Court has diversity jurisdiction.23 However, Amazon does not address the
issue of consent.24
17 R. Doc. 10.
18 R. Doc. 12 at 1-2.
19 R. Doc. 12-1 at 6-13 (quoting Williamson v. Aramark Schools Facilities, LLC, 2017 WL 5761626, at *4-6
(M.D. La. Oct. 30, 2017)).
20 Id. at 13.
21 R. Doc. 12-4 at 1-9.
22 R. Doc. 15-1 at 42, 98-103.
23 R. Doc. 18 at 5.
24 R. Doc. 18.
Plaintiffs then sought leave to file a reply brief, in which they again urge that the lack of
complete diversity and the failure to obtain proper consent warranted remand.25 Amazon opposed
Plaintiffs’ motion for leave in part, claiming that Plaintiffs failed to raise the issue of consent in
their original motion to remand.26 Finding that the issue of consent was indeed raised by Plaintiffs
in their motion to remand, this Court permitted the filing of the reply brief.27 In a surreply (which
the Court also allowed), Amazon argues that, at the time of removal, the state-court record reflected
completed service for only Germaine White, one of the Amazon Supervisors who Amazon
contends is improperly joined and thus should be disregarded.28 Alternatively, Amazon asks in
the surreply that, if additional defendants were served prior to removal, this Court apply an
exception to the rule of unanimity due to exceptional circumstances.29 Lastly, Amazon suggests
that the Court allow the properly joined and served defendants to first make their appearance and
then take a position as to whether they consent to the removal of this matter.30
On July 17, 2023, five days after filing its surreply, Amazon filed a document titled “proof
of consent to removal” purporting to be proof that insurers Prime Insurance and Great American
consented to the removal.31 To this document, Amazon attached emails from Prime Insurance’s
counsel dated July 13, 2023, and Great American’s counsel dated July 14, 2023, communicating
that the insurance companies consent to the removal.32 Plaintiffs argue that Amazon’s proof of
25 R. Docs. 20 at 1; 20-3 at 2-6 (proposed reply brief); 26 at 2-6 (reply brief).
26 R. Doc. 21 at 2.
27 R. Doc. 25 at 1 (citing R. Doc. 12 at 13).
28 R. Doc. 31 at 2.
29 Id. at 2-3 (citing Wagner v. Gov. Emps. Ins. Co., 2019 WL 626430 (E.D. La. Feb. 14, 2019)).
30 Id. at 3.
31 R. Doc. 32.
32 R. Doc. 32-1 at 1-4. Counsel for Prime Insurance writes, “You have Prime’s consent.” Counsel for Great
American responds, “Yes, thank you!,” to an email from Amazon’s counsel asking, “Just so I’m clear, Great American
consents to removal?”
consent is untimely as both it and the alleged consents (i.e., the emails) were filed outside the 30-
day time period allowed for consents to removal under 28 U.S.C. 1446(b).33
III. LAW AND ANALYSIS
A. Removal Standard
A defendant may remove from state court to the proper United States district court “any
civil action brought in a State court of which the district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). “A federal district court has subject matter jurisdiction over a
state claim when the amount in controversy is met and there is complete diversity of citizenship
between the parties.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing
28 U.S.C. § 1332(a)). Because federal courts have only limited jurisdiction, the removal statute is
strictly construed, and any doubts or ambiguities are resolved against removal and in favor of
remand. Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014); Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The party seeking removal
has the burden of establishing “that federal jurisdiction exists and that removal was proper.”
Manguno, 276 F.3d at 723.
B. Rule of Unanimity
Procedural requirements for removal are set forth in 28 U.S.C. § 1446(b). To remove a
case, a defendant must file a notice of removal within 30 days of service on the defendant. Id. §
1446(a)-(b)(1). All defendants who have been “properly joined and served” must join in or consent
to the removal of the action. Id. § 1446(b)(2)(A). According to the Fifth Circuit, this “rule of
unanimity” requires that each served defendant join in the notice of removal or that there be a
“timely filed written indication from each served defendant, or from some person or entity
33 R. Doc. 33 at 2.
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.” Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262
(5th Cir. 1988). District courts in the Fifth Circuit “have consistently remanded cases where a
notice of removal included only an allegation of consent of a defendant not joining in the notice
of removal.” McFarland v. Protective Ins. Co., 2019 WL 351150, at *2 (E.D. La. Jan. 29, 2019)
(citing Spoon v. Fannin Cnty. Cmty. Supervision & Corr. Dep’t, 794 F. Supp. 2d 703, 707 (E.D.
Tex. 2011) (collecting cases)).
The Fifth Circuit has recognized three exceptions to the rule of unanimity: (1) non-
removing defendants who are improperly or fraudulently joined; (2) non-removing defendants who
are merely nominal or formal parties; and (3) non-removing defendants who have not been served
by the time of removal. Wagner, 2019 WL 626430, at *3 (citations omitted); World Prayer
Tabernacle v. Certain Underwriters at Lloyd’s, 2022 WL 4949125, at *1 (E.D. La. Oct. 4, 2022).
And it has also “recognized that ‘sometimes exceptional or unique circumstances might permit
removal after the expiration of the thirty-day period prescribed by § 1446(b).’” Cavalier v.
Progressive Paloverde Ins. Co., 2021 WL 4772108, at *2 (E.D. La. Oct. 12, 2021) (quoting Ortiz
v. Young, 431 F. App’x 306, 307 (5th Cir. 2011)). This additional exception has only been granted
by the Fifth Circuit in the “unique” case of Gillis v. Louisiana, 249 F.3d 755 (5th Cir. 2002), in
which “the non-removing defendant did not file its written consent in thirty days because consent
could be authorized only at a board meeting, and the plaintiff, who was also the chairman of the
board, had interposed scheduling conflicts that prevented timely consent.” Cavalier, 2021 WL
4772108, at *2. Such “exceptional circumstances” will generally be found, then, only when the
non-removing defendant’s “lack of timely consent arises from plaintiff’s conduct, such as
plaintiff’s ‘bad faith efforts to prevent removal.’” Id. (quoting Ortiz, 431 F. App’x at 307-08).
Thus, the Fifth Circuit has instructed district courts to consider the reasonableness of the removing
defendant’s actions and whether the circumstances (e.g., plaintiff’s conduct) were sufficiently
“exceptional” to justify a departure from the rule of unanimity. Getty, 841 F.2d at 1263.
C. Amazon’s Removal Was Procedurally Defective
Although Plaintiffs present two distinct issues in the motion to remand, the lack of
unanimous consent to removal provides sufficient grounds to grant the motion.34 Plaintiffs argue
that removal is defective due to Amazon’s failure to file into the court record notices of consent as
to all properly joined and served defendants within the 30-day period for removal.35 After careful
consideration, the Court agrees that Amazon’s removal was procedurally defective.
Each defendant must consent to removal and cannot rely on the removing party’s allegation
of consent by the non-removing defendants. See Getty, 841 F.2d at 1262 & n.11; McFarland,
2019 WL 351150, at *2. Among the defendants who are assumed to be properly joined and who
were properly served prior to removal, only Lancer and Brian Davis timely consented to removal.36
This leaves the insurers Prime Insurance and Great American as the only defendants properly
joined and served before Amazon’s removal whose consent to removal was not timely made a part
of the court record. But Amazon alleges that Prime Insurance and Great American did consent to
removal by means of emails dated July 13 and 14, 2023, respectively, and Amazon attaches these
emails to the “proof of consent to removal” it filed into the record on July 17, 2023.37 This “proof
34 R. Doc. 2-1 at 13. Consequently, the Court does not reach Plaintiffs’ contention that the nondiverse
Amazon Supervisors were properly joined and that, as a result, the case should be remanded for lack of diversity.
Instead, the Court will assume for purposes of this motion that the Amazon Supervisors were not properly joined and
thus should be ignored.
35 R. Doc. 26 at 2.
36 R. Docs. 9; 10. Defendants B3 and Kirksey also timely consented to removal, R. Docs. 10; 24, but the
record does not contain proof that they were served before Amazon’s removal of the case. The record reflects that
defendants Mota and White were served before Amazon’s removal, R. Docs. 12-4 at 2; 15-1 at 43, 102, but, again, as
Amazon Supervisors, they are assumed for purposes of this analysis to be improperly joined and so are ignored.
37 R. Doc. 32.
of consent” cannot carry the weight Amazon places on it, though, because no “timely filed written
indication” of consent by Great American or Prime Insurance was filed into the record within the
30-day period for removal, which ended on July 13, 2023.38 See Getty, 841 F.2d at 1262 n.11;
Waguespack v. Homesite Ins. Co., 2022 WL 612071, at *2 (E.D. La. Feb. 28, 2022) (“Here,
[defendant]’s notice of consent to removal was filed 31 days after the defendants were served.
Thus, it was untimely.”). Nor are the emails, in and of themselves, sufficient to establish that Great
American and Prime Insurance’s purported “consent” to the removal was timely. After all, it is
well-established “that private emails between counsel are insufficient to constitute written consent
as they fail to put either the Court or the plaintiff on notice.” Taco Tico of New Orleans, Inc. v.
Argonaut Great Cent. Cent. Ins. Co., 2009 WL 2160436, at *2 (E.D. La. Jul. 16, 2009) (citing
Johnson v. Health Bilal, 2009 WL 981696, at *2 (E.D. La. Apr. 13, 2009), and Marshall v. Air
Liquide-Big Three, Inc., 2006 WL 286011, at *3 (E.D. La. Feb. 7, 2006)).
In short, “[b]ecause no written consent was timely filed by [all properly joined and served
non-removing defendants], and because such consent cannot be filed outside of the thirty day time
period, Plaintiffs have raised a procedural defect that requires remand.” Melton v. Toney, 2017
WL 11543680, at *6 (M.D. La. Dec. 5, 2017), adopted, 2017 WL 11543720 (M.D. La. Dec. 21,
2017); see also Grand Tex. Homes, Inc. v. Am. Safety Indem. Co., 2012 WL 5355958, at *3 (N.D.
Tex. Oct. 30, 2012) (“Failure to join in removal is a procedural defect that cannot be cured by
untimely notice of consent” and cannot be remedied after the 30-day period for removal has
ended). Therefore, absent an exception to the rule of unanimity, Amazon’s removal is defective,
and the case must be remanded.
38 Amazon, Great American, and Prime Insurance were all served on June 13, 2023. R. Docs. 12-4 at 1, 4-5;
15-1 at 98-100.
Regarding the first two exceptions (non-removing defendants who are improperly or
fraudulently joined or are merely nominal or formal parties), the five nondiverse Amazon
Supervisors are here assumed to have been improperly joined and thus are ignored.39 But no party
contends that the insurer-defendants Great American and Prime Insurance are improperly joined
or nominal parties. Therefore, these exceptions do not apply to these two defendants. Proceeding
to the third exception (non-removing defendants who have not been served by the time of removal),
Prime Insurance and Great American were served on June 13, 2023, and the case was removed on
June 15, 2023.40 Thus, these defendants were served by the time of removal, so the third exception
does not apply to them.
Although the three exceptions to the rule of unanimity do not apply in this case, Amazon
points to the decision in Wagner v. Government Employees Insurance Co. to argue that
“exceptional circumstances” warrant departure from the rule and a denial of the motion to remand.
In Wagner, the plaintiffs delayed entering into the state-court record an affidavit of service of
process for the non-removing defendant until after removal. Wagner, 2019 WL 626430, at *5.
Prior to removal, the removing defendant “attempted several times to ascertain whether [the non-
removing defendant] had been served,” including, most notably, in a conversation with the
plaintiffs the day before filing its notice of removal during which plaintiffs failed to advise that the
non-removing defendant had been served more than a month before the conversation. Id. The
Wagner court found that because the removing defendant “acted on the information before it at the
time of removal and sought to obtain consent to removal from all of the defendants,” exceptional
circumstances permitted removal even though the consent of a properly joined and served non-
removing defendant had not been filed into the court record within the 30-day period. Id.
39 R. Doc. 4 at 5.
40 R. Docs. 12-4 at 4-5; 4 at 1.
In contrast, the court in Cavalier v. Progressive Paloverde Insurance Co. distinguished
Wagner and found that the removing defendant failed to “act with the requisite diligence to warrant
an exception to the consent requirement.” Cavalier, 2021 WL 4772108, at *2-4. The removing
defendant there represented that its only effort to obtain consent was calling the state-court clerk
before removal to determine whether the non-removing defendant had been served. Id. at *3
(comparing Wagner, where the removing defendant diligently attempted to contact its co-
defendants several times to obtain consent for removal and had spoken to plaintiffs who had kept
silent about service on defendants). The Cavalier court found that the removing defendant’s “lack
of diligence in reaching out to [the non-removing defendant] is even less excusable given that
plaintiff’s state court petition included the name and address of [the non-removing defendant’s]
agent for service.” Id.; see also World Prayer Tabernacle, 2022 WL 4949125 at *4 (“[M]inimal
steps, such as a phone call to the plaintiff, would likely have sufficed to determine whether [the
non-removing defendants] had been served. Because [the removing defendant] cannot point to
diligent or good faith efforts to obtain the consent of [the non-removing defendants], this Court
finds no exceptional circumstances which would justify removal of this case.”).
Here, Amazon has failed to demonstrate sufficient effort to ascertain the status of service
on, or to obtain consent from, its named co-defendants, including particularly Great American and
Prime Insurance, within the 30-day removal period. Unlike the removing defendant in Wagner,
Amazon points to no attempts it made to determine whether the other named defendants had been
served before removal, other than ordering and attaching the state-court record to its notice of
removal.41 In Cavalier, the removing defendant called the state-court clerk to inquire whether the
non-removing defendant had been served, and the court still found that the defendant had not acted
41 R. Docs. 31 at 1; 4 at 1-2.
with the requisite diligence to justify an exception to the consent requirement. Generally, courts
have not found exceptional circumstances to warrant an exception to the unanimity rule when the
removing defendant simply relied on the state-court record at the time of removal; instead, they
require that the removing defendant make a diligent effort to contact the non-removing defendants
to ask about service. Id. at *2 (citing Dupree v. Torin Jacks, Inc., 2009 WL 366332, at *5 (W.D.
La. Feb. 12, 2009) (“[T]he absence of record evidence of service, standing alone, does not
automatically equal exceptional circumstances.”); Grant v. FCA US, LLC, 2019 WL 2635930, at
*2 (E.D. La. June 27, 2019) (“Considering Defendant[’s] failure to attempt to contact the other
Defendants ... the Court finds that the facts do not present an exceptional circumstance, and remand
is appropriate.”)).
Even if Amazon was unaware that other properly joined defendants had been served prior
to removal (as does appear to have been true from the state-court record it attached to its notice of
removal),42 Plaintiffs raised the issue of unanimous consent in their motion to remand, which was
filed on June 28, 2023, just 13 days after Amazon’s notice of removal – and, significantly, still 15
days before the 30-day removal period expired.43 With its motion to remand, Plaintiffs provided
the proofs of service on Great American and Prime Insurance, among others.44 Further, with its
own compliance memorandum filed on July 3, 2023, 18 days after removal, but 10 days before
expiration of the 30-day period, Amazon also included the service returns for Great American and
Prime Insurance reflecting that they had been served on June 13, 2023, two days before the June
15 removal.45 Therefore, Amazon had actual notice of service on these two defendants well within
the 30-day period. Yet, Amazon waited until July 13 and 14 to contact Great American and Prime
42 R. Doc. 1-2.
43 R. Doc. 12-1 at 13 (attaching R. Doc. 12-4).
44 R. Doc. 12-4 at 1-9.
45 R. Doc. 15-1 at 98, 100.
Insurance about their consent and did not file a written indication of such consent until after the
30-day period lapsed. Consequently, the Court finds that Amazon did not make diligent efforts
either to obtain consent of all properly joined and served non-removing defendants, or to file into
the record a timely written indication of such consent. Moreover, this case does not involve any
allegation or indication of bad faith or forum manipulation by Plaintiffs. See e.g., Forman v.
Equifax Credit Info. Svcs., Inc., 1997 WL 162008, at *1 (E.D. La. Apr. 4, 1997) (“There is no
evidence, nor any allegation, that plaintiff withheld service to defeat removal or otherwise acted
in bad faith in an attempt to manipulate the forum.”).
Lastly, Amazon suggests that the proper manner of proceeding is to allow the properly
joined and served defendants to first make their appearance and then take a position as to whether
they consent to the removal of this matter.46 However, “[d]istrict courts have no power to overlook
procedural errors related to the notice of removal; instead, a district court must remand a case
which was removed pursuant to a procedurally defective notice.” Grigsby v. Kansas City So. Ry.
Co., 2012 WL 3526903, at *3 (W.D. La. Aug. 13, 2012); see also Cornella v. State Farm Fire &
Cas. Co., 2010 WL 2605725, at *3 (E.D. La. June 22, 2010) (“[T]he Court cannot cut jurisdictional
corners as doing so would be contrary to Fifth Circuit jurisprudence.”). Thus, this argument fails.
46 R. Doc. 31 at 3.
IV. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Plaintiffs’ motion to remand (R. Doc. 12) is GRANTED, and this
case is REMANDED to the 24th Judicial District Court, Parish of Jefferson, State of Louisiana.
New Orleans, Louisiana, this 26th day of July, 2023.
______________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE