“Forster’s failure to join in the removal petition is not a bar to the federal court’s jurisdiction. Forster could not have joined in it because, as Jones acknowledges, Forster was not even served until after the case had been removed.”
How later courts described this case
- “Forster’s failure to join in the removal petition is not a bar to the federal court’s jurisdiction. Forster could not have joined in it because, as Jones acknowledges, Forster was not even served until after the case had been removed.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEREMY CRUMP CIVIL ACTION
VERSUS CASE NO. 24-872
MICHAEL ELLIOTT LAWRENCE, et al. SECTION: “G”
ORDER AND REASONS
Before the Court is Plaintiff Jeremy Crump’s (“Plaintiff”) Motion to Remand.1 Plaintiff
argues that this matter should be remanded to the 29th Judicial District Court for the Parish of St.
Charles because all served defendants did not join in the removal or file a timely written consent
to removal.2 In opposition, Defendants ACE American Insurance Company and Werner
Enterprises, Inc. (collectively “Removing Defendants”) argue that while Michael Elliott Lawrence
(“Lawrence”) was named in Plaintiff’s suit, he was not properly served, and alternatively,
Removing Defendants consented to removal on Lawrence’s behalf because he is represented by
Removing Defendants’ counsel.3 For the reasons discussed in more detail below, Plaintiff has not
shown that there was a procedural defect in the removal process. Therefore, considering the
motion, the opposition, the record, and the applicable law, the Court denies the motion.
I. Background
On or about December 23, 2022, Plaintiff was operating a 2018 Chevrolet Silverado pick-
up truck and was stopped on the eastbound shoulder of Interstate 10 in St. Charles Parish,
1 Rec. Doc. 6.
2 Id.
3 Rec. Doc. 8.
1
Louisiana.4 At the same time, Defendant Michael Elliott Lawrence (“Lawrence”) was operating a
2019 Peterbilt tractor pulling a semitrailer owned by his employer Werner Enterprises, Inc. of
Nebraska.5 Lawrence was traveling eastbound on Interstate 10 in the outermost lane and allegedly
crashed into the driver’s side of Plaintiff’s vehicle.6 Plaintiff alleges that he suffered physical and
mental injuries as a result of this incident.7
On November 22, 2023, Plaintiff filed suit against Lawrence, Werner Enterprises, Inc. of
Nebraska (“Werner”), and ACE American Insurance Company (“ACE”) in the 29th Judicial
District Court for the Parish of St. Charles.8 On April 5, 2024, ACE and Werner removed the
matter to this Court alleging diversity jurisdiction under 28 U.S.C. § 1332.9 On May 9, 2024,
Plaintiff filed the instant motion.10 On June 4, 2024, Removing Defendants filed an opposition to
the motion.11
4 Rec. Doc. 1-1 at 1–2.
5 Id. at 2.
6 Id.
7 Id.
8 Rec. Doc. 1-1.
9 Rec. Doc. 1.
10 Rec. Doc. 6.
11 Rec. Doc. 8.
2
II. Parties’ Arguments
A. Plaintiff’s Arguments in Support of the Motion
Plaintiff argues that this matter should be remanded because the removal was procedurally
defective.12 Plaintiff contends that all served defendants did not join in the removal or file a timely
written consent to the removal.13 Specifically, Plaintiff asserts that at the time of removal,
Lawrence had been properly served but did not join in the removal or file a written consent to
removal.14 Plaintiff contends that Lawrence was served in accordance with the long-arm statute,
Louisiana Revised Statute § 13:3204.15 Plaintiff states that the summons and citation were sent
via certified mail to Lawrence’s last known address, 1114 Curlew Drive, San Antonio, Texas
78214.16 Plaintiff asserts that the summons and citation arrived at the United States Post Office in
San Antonio, Texas on February 5, 2024.17 Plaintiff states that the summons and citation was
forwarded to the United States Post Office in Austin, Texas per the “customer’s request” where it
has been held since March 12, 2024.18
Plaintiff argues that when Removing Defendants filed the notice of removal, Lawrence had
been served but did not join in the removal or timely file a written consent to removal, and thus
12 Rec. Doc. 6-1 at 2.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id. at 3.
18 Id.
3
the removal is defective. 19 Plaintiff contends that pursuant to Louisiana Revised
Statute § 13:3204, all that is necessary to constitute service upon a non-resident is that counsel sent
a certified copy of the citation and petition to the defendant by registered or certified mail, or
actually deliver it to that person.20 Plaintiff asserts that there is no requirement for a signed return
receipt.21
Plaintiff argues that Removing Defendants failed to provide written consent for removal
on behalf of Lawrence within the required time delays.22 Plaintiff asserts that the Fifth Circuit has
held that statements on behalf of non-removing defendants in a notice of removal are insufficient
without written evidence of actual consent.23
B. Removing Defendants’ Arguments in Opposition to the Motion
In opposition, Removing Defendants contend that Plaintiff has not served Lawrence at his
correct address as required by Louisiana Revised Statute § 13:3204, and thus, Lawrence was not
required to consent to removal.24 Even if Lawrence was served, Removing Defendants point out
that the notice of removal states “Mr. Lawrence is represented by undersigned counsel and joins
in and consents to this removal,” which satisfies the Fifth Circuit’s written consent requirements.25
19 Id.
20 Id. at 5.
21 Id.
22 Id. at 6.
23 Id.
24 Rec. Doc. 8 at 1.
25 Id.
4
Removing Defendants argue that Plaintiff’s law firm has a pattern of refusing to provide
proof of service, refusing to file an affidavit of service into the state court record, refusing to
stipulate to the amount in controversy, and filing a boilerplate motion to remand.26
Removing Defendants contend that Plaintiff’s counsel attempted to serve Lawrence at 1114
Curlew Drive, San Antonio, Texas 78414, but Lawrence moved to Austin, Texas in September of
2023.27 Removing Defendants assert that Lawrence was domiciled at the Austin, Texas address
five months before Plaintiff attempted to serve Lawrence at the San Antionio, Texas address.28
Removing Defendants aver that Plaintiff has yet to serve, or attempt to serve, Lawrence at the
correct address.29
Removing Defendants argue that Lawrence was not properly served pursuant to Louisiana
Revised Statute § 13:3204, and thus, Lawrence was not required to consent to removal.30
Removing Defendants contend that, to date, Lawrence has not received the petition.31 Removing
Defendants assert that Plaintiff offers no evidence that Lawrence is the unidentified customer that
requested that the summons and citation be held at the post office.32
26 Id. at 1–2.
27 Id. at 3.
28 Id.
29 Id.
30 Id.
31 Id. at 5.
32 Id.
5
Even assuming Plaintiff properly served Lawrence, Removing Defendants argue that the
removal was proper because Lawrence consented to removal.33 Removing Defendants assert that
the Notice of Removal states that “Mr. Lawrence is represented by undersigned counsel and joins
in and consents to this removal.”34 Removing Defendants aver that the notice was filed thirty days
after discovery responses serving as a basis for removal were received.35 Removing Defendants
contend that the notice contained (1) a timely filed written indication, (2) from undersigned counsel
who has authority to act on Lawrence’s behalf as his attorney, and (3) express language stating
that Lawrence joined in and consented to the removal.36 Removing Defendants aver that the
Notice of Removal comports with the Fifth Circuit’s requirements.37
III. Legal Standard
For cases removed pursuant to 28 U.S.C. § 1441(a), 28 U.S.C. § 1446(b) requires “all
defendants who have been properly joined and served [to] join in or consent to the removal of the
action.” This is known as the “rule of unanimity.” The Fifth Circuit has found that “[t]he rule of
unanimity requires that all defendants to an action either sign the original petition for removal or
timely file written consent to the removal.”38 Pursuant to 28 U.S.C. § 1446(b)(2)(B), “[e]ach
defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or
33 Id. at 6.
34 Id. at 7.
35 Id.
36 Id.
37 Id.
38 Powers v. U.S., 783 F.3d 570 (5th Cir. 2015) (citing Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co.
of N. Am., 841 F.2d 1254, 1262 (5th Cir. 1988) (citations omitted)); see also Farias v. Bexar Cty. Bd. of Trustees for
Mental Health Mental Retardation Servs., 925 F.2d 866, 871 (5th Cir. 1991).
6
summons . . . to file the notice of removal.” However, “[i]f defendants are served at different times,
and a later-served defendant files a notice of removal, any earlier-served defendant may consent
to the removal even though that earlier-served defendant did not previously initiate or consent to
removal.”39
A violation of the rule of unanimity renders the removal procedurally defective.40 The
Fifth Circuit has recognized three exceptions to the rule of unanimity. A removing defendant does
not have to obtain consent to removal from: (1) improperly or fraudulently joined defendants,41
(2) nominal or formal parties,42 and (3) non-forum defendants who have not been served by the
time of removal.43 The Fifth Circuit has also acknowledged that “exceptional circumstances” may
justify allowing a defendant to remove a case without meeting the usual consent requirements.44
However, the Fifth Circuit has clarified that “those instances where this court has exercised its
equitable powers to permit a party to consent to removal outside of the statutorily prescribed time
frame often concern plaintiff conduct, and not untimely consent to removal by a defendant.”45 The
Fifth Circuit has found exceptional circumstances in the case of bad faith efforts by a plaintiff to
39 28 U.S.C. § 1446(b)(2)(C).
40 Getty Oil Corp., 841 F.2d at 1262; Harris v. Edward Hyman Co., 664 F.2d 943, 944 (5th Cir. 1981).
41 Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 2003).
42 Farias, 925 F.2d at 871.
43 Getty Oil Corp., 841 F.2d at 1262 n.9 (“Defendants (at least those not citizens of the forum state) who are
unserved when the removal petition is filed need not join in it.”) (citing Pullman Co. v. Jenkins, 305 U.S. 534 (1939);
Lewis v. Rego Co., 757 F.2d 66, 68–69 (3d Cir. 1985)); Jones v. Houston Indep. Sch. Dist., 979 F.2d 1004, 1007 (5th
Cir. 1992) (“Forster’s failure to join in the removal petition is not a bar to the federal court’s jurisdiction. Forster could
not have joined in it because, as Jones acknowledges, Forster was not even served until after the case had been
removed.”).
44 Getty Oil Corp., 841 F.2d at 1263, n.12.
45 Ortiz v. Young, 431 F. App’x 306, 307 (5th Cir. 2011).
7
prevent removal, or in instances in which permitting untimely removal is necessary to prevent
injustice.46
IV. Analysis
Plaintiff alleges that there is a procedural defect in the removal process, specifically, that
Lawrence did not consent to the removal. Defendant argues that Lawrence was not properly served,
and alternatively, Removing Defendants consented on Lawrence’s behalf.
Removing Defendants provide an unsworn declaration from Lawrence wherein he states
that he is currently domiciled at 11510 RM 620 N., Apt. 7110, Austin, Texas 78717, and has been
domiciled there since September 2023.47 On February 5, 2024, when Plaintiff attempted to serve
Lawrence at 1114 Curlew Drive, San Antonio, Texas, 78214 via certified mail, Lawrence was no
longer domiciled at this address.
Louisiana Revised Statute § 13:3204(A) states in part:
In a suit under R.S. 13:3201 [personal jurisdiction over nonresidents], a certified
copy of the citation ... and of the petition ... 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....
The Court finds that Lawrence was not properly served in accordance with Louisiana
Revised Statute § 13:3204 because he was not domiciled at the address in San Antonio, Texas at
the time Plaintiff attempted service. “Logically, a necessary requirement for proper long-arm
service is that the petitioner sends the certified citation and petition to the actual, correct address
46 Id. at 307–08 (citing Brown v. Demco, 792 F.2d 478, 482 (5th Cir. 1986)); Doe v. Kerwood, 969 F.2d 165,
169 (5th Cir. 1992).
47 Rec. Doc. 8-1.
8
of the defendant.”48 Under Section 1441(a), all defendants who have been properly joined and
served must joint in or consent to the removal of the action.49 Since Lawrence was not properly
served, he was not required to consent to removal of the action.
In any event, Removing Defendants properly consented to the removal on Lawrence’s
behalf. The Notice of Removal states “…without waiving the formal requirements of service of
process, Mr. Lawrence is represented by undersigned counsel and joins in and consents to this
removal.”50 The Fifth Circuit has stated that “there must 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.”51
Removing Defendants satisfied this requirement and properly consented to removal on Lawrence’s
behalf.
48 See Folse v. St. Rose Farms, Inc., 14-436 (La. App. 5 Cir. 11/25/14), 165 So. 3d 104; see also Dukov v.
701 Corp., 95-1310 (La. App. 4 Cir. 1/19/96), 668 So. 2d 379.
49 28 U.S.C. § 1446(b)(2)(A) (emphasis added).
50 Rec. Doc. 1 at 7.
51 Getty Oil Corp., 841 F.2d at 1262, n.11.
9
V. Conclusion
For the reasons stated herein, the Court finds that there were no procedural defects in the
removal process. As such, the Court must deny Plaintiff's request to remand the matter to state
court. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Motion to Remand* is DENIED.
NEW ORLEANS, LOUISIANA, this _20th_ day of June, 2024.
□ arnnette Jobat. Bro
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
2 Rec. Doc. 6.
10