Opinion

Guidry v. Old Republic Insurance Company

Court
District Court, E.D. Louisiana
Filed
Oct 22, 2024
Cited by
0 cases
Authority
More cited than 31.4%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SADIE CLAIRE GUIDRY CIVIL ACTION

VERSUS NO. 24-1725

OLD REPUBLIC INSURANCE SECTION: “P” (4)

COMPANY, ET AL.

ORDER AND REASONS

Before the Court is a motion to remand filed by plaintiff Sadie Claire Guidry.1 Defendants

Louis Brent (improperly named as “Brent E. Louis”), Old Republic Insurance Company (“Old

Republic”), and Schneider National Carriers, Inc. (“Schneider”) (collectively, “Defendants”),

respond in opposition,2 and Guidry replies in further support of her motion.3 Having considered

the parties’ memoranda, the record, and the applicable law, the Court issues this Order and Reasons

denying the motion because all properly served defendants consented timely to the removal.

I. BACKGROUND

This case concerns an automobile accident. Guidry alleges that on November 2, 2022, she

was driving through the middle of a roundabout when Brent, who was driving a tractor-trailer,

failed to yield and entered the roundabout directly in front of Guidry, causing a collision.4 At the

time of the accident, Brent was acting in the course and scope of his employment with Schneider,

the owner of the truck.5 On September 27, 2023, Guidry filed this suit in state court against Brent,

1 R. Doc. 5.

2 R. Doc. 8.

3 R. Doc. 11.

4 R. Doc. 1-4 at 1-2.

5 Id. at 2.

Schneider, and its insurer, Old Republic, asserting various state-law claims and seeking damages

for back and neck injuries.6

On October 19, 2023, Guy D. Perrier of the law firm Perrier & Lacoste, L.L.C. wrote to

plaintiff’s counsel informing him that the firm was “employed in connection with this suit to

represent the interests of Old Republic Insurance Company, General Insurance Company of

America, Schneider National Carriers, Inc. and Brent E. Louis.”7 The letter also stated that

attorney Michael W. Robertson would handle the case on the firm’s behalf.8

On June 10, 2024, defense counsel received Guidry’s responses to requests for admission

in which Guidry confirmed for the first time that her damages could exceed $75,000.9 Then, on

June 19, 2024, defense counsel received Guidry’s responses to interrogatories and requests for

production of documents, which attached medical records showing that Guidry had undergone

three lumbar epidural steroid injections and one cervical epidural steroid injection since the

accident.10 Based on Guidry’s discovery responses, Schneider and Old Republic timely removed

the action to this Court, alleging diversity subject-matter jurisdiction under 28 U.S.C. § 1332.11

The notice of removal stated that “[b]ased on information and belief, Louis Brent … has not been

properly served with the [c]itation and a copy of the original Petition for Damages, so his consent

to this removal is not required. However, once Louis Brent is served, he will be represented by

6 Id. at 1-6. Guidry also named General Insurance Company of America (“General Insurance”) as a

defendant, but she voluntarily dismissed without prejudice those claims after General Insurance filed a

peremptory exception of no cause of action, stating that it was not Schneider’s insurer at the time of the

accident. R. Doc. 1-8 at 19-40, 42.

7 R. Doc. 8-3.

8 Id.

9 R. Doc. 1 at 3-4 (citing R. Doc. 1-6).

10 Id. at 4 (citing R. Doc. 1-7).

11 Id. at 1-7. The parties are unquestionably diverse. Guidry is a Louisiana citizen. R. Doc. 1-4 at 1. Brent

is an Alabama citizen. R. Doc. 1 at 2. Schneider is a citizen of Nevada and Wisconsin. Id. Old Republic

is a Pennsylvania citizen. Id.

undersigned counsel, and he consents to the removal of this matter.”12 Robertson signed the

petition for removal as Defendants’ attorney.13

Thereafter, on August 9, 2024, Guidry filed into the record of this Court an affidavit of

service in which an employee of plaintiff’s counsel states that she sent a citation and a copy of the

petition to Brent by certified mail, return receipt requested.14 The attached documents show that,

on October 18, 2023, the package was set to Brent at an address in Birmingham, Alabama.15

Delivery was attempted on October 25, 2023, but notice was left because there was “[n]o

[a]uthorized [r]ecipient [a]vailable.”16 On October 30, 2023, the United States Postal Service

(“USPS”) sent to plaintiff’s counsel a “[r]eminder to [s]chedule [r]edelivery of your item.”17

Ultimately, in December 2023, the package was returned to sender, i.e., plaintiff’s counsel, in

Hammond, Louisiana.18

II. PENDING MOTION

On August 9, 2024, Guidry filed the instant motion to remand, arguing that the removal

was procedurally improper because Brent was served via Louisiana’s long-arm statute and failed

to consent timely to the removal, thus violating the rule of unanimity.19 Guidry characterizes the

statement in the notice of removal regarding Brent’s consent as an “allegation” made by the

removing parties, which she says is insufficient because it does not clearly indicate that Robertson

12 Id. at 1-2.

13 Id. at 7.

14 R. Doc. 4.

15 Id. at 2-4.

16 Id. at 4.

17 Id.

18 Id. at 3-4.

19 R. Doc. 5.

in fact represented Brent when the notice was filed.20 Thus, according to Guidry, Brent’s supposed

failure to consent timely to the removal mandates remand.21

In opposition, Defendants argue that an equitable exception to the rule of unanimity is

appropriate in this case because Brent did not, and could not, have known that service was

attempted.22 They point out that, although plaintiff’s counsel sent the package to the correct

address, the USPS attempted delivery only once, nobody signed the green card accepting the

correspondence, and Brent never received any notification from the USPS that he had a letter to

retrieve.23 No other service attempts were made by either the USPS or plaintiff’s counsel to

provide Brent with actual notice of the suit, and he would not have known about it if he had not

been contacted by Robertson.24 Defendants further argue that the notice of removal clearly states

Brent’s consent to removal and is signed by Brent’s authorized representative, i.e. Robertson,

which satisfies the rule of unanimity.25 Finally, Defendants suggest that the motion to remand is

“gamesmanship” by plaintiff’s counsel because, in other cases, the same law firm has failed to file

in the state court record proof of service on an out-of-state defendant, and then, after removal in

which the out-of-state defendant did not consent as unserved, plaintiff’s counsel filed such proof

into the federal court record to advocate for remand on the ground that the rule of unanimity was

violated in the removal procedure.26

Guidry replies, arguing that there are no “extraordinary circumstances” justifying an

equitable exception to the rule of unanimity because Brent was served under the Louisiana long

20 R. Doc. 5-1 at 4-8.

21 Id. at 1-8.

22 R. Doc. 8 at 1, 3-6.

23 Id. at 3-4.

24 Id.

25 Id. at 1, 6-8.

26 Id. at 1-2, 8-10.

arm statute when plaintiff’s counsel sent the required documents to the correct address and because

there is no requirement that Brent receive actual notice.27 She also reiterates her contention that

the statement of Brent’s consent in the notice of removal is insufficient because it does not

affirmatively establish that Brent and Robertson had an attorney-client relationship.28 Finally,

Guidry takes umbrage with the notion that her attorney is engaged in “gamesmanship” and points

out distinguishing facts in the other cases cited by Defendants.29

III. LAW & 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.

27 R. Doc. 11 at 2-4.

28 Id. at 4-5.

29 Id. at 6.

B. Rule of Unanimity

The procedural requirements for removal are set forth in 28 U.S.C. § 1446(b). Generally,

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). However, when the case as stated in the petition is not removable,

a defendant may file a notice of removal within 30 days of receipt “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.” Id. § 1446(b)(3). 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). The

Fifth Circuit has said that 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 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). Accordingly, 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)).

However, 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 v. Gov’t Emps. Ins. Co., 2019 WL 626430, at *3 (E.D. La.

Feb. 14, 2019) (citing Fifth Circuit decisions); World Prayer Tabernacle v. Certain Underwriters

at Lloyd’s, 2022 WL 4949125, at *1 (E.D. La. Oct. 4, 2022). The Fifth Circuit 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)). The Fifth Circuit allowed the additional exception 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 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. Defense counsel’s consent on Brent’s behalf satisfies the rule of unanimity.

The consent on Brent’s behalf stated in the notice of removal, coupled with the facts of

Robertson’s representation of all Defendants, satisfies the rule of unanimity.30 In the notice of

removal, Robertson, subject to Rule 11 of the Federal Rules of Civil Procedure, states that “once

Louis Brent is served, he will be represented by undersigned counsel, and he consents to the

removal of this matter.”31 Some district courts have recognized that, standing alone, an attorney’s

“use of the phrase ‘will represent’ linguistically suggests that he ‘only contemplated a potential

30 Because the Court finds that the rule of unanimity is satisfied, it need not address whether any exception

applies due to the circumstances surrounding service on Brent and counsel’s failure to file proof of such

service in the state court record.

31 R. Doc. 1 at 1-2.

future attorney-client relationship’ with the [n]on-[r]emoving [d]efendants at the time of removal.”

Haynes v. Take 5 Props. SPV, LLC, 2023 WL 2620904 (M.D. La. Mar. 3, 2023), report and

recommendation adopted, 2023 WL 2616088 (M.D. La. Mar. 23, 2023) (quoting Baxter v.

Anderson, 2016 WL 3748720, at *5 (M.D. La. June 21, 2016)); see also James v. Nat’l Cont’l Ins.

Co., 2024 WL 4143582, at *6 (M.D. La. Aug. 26, 2024), report and recommendation adopted,

2024 WL 4142743 (M.D. La. Sept. 10, 2024). However, as in Haynes and James, that statement

does not stand alone here.

After removal, Robertson filed a declaration stating that his law firm was retained to

represent all Defendants in this litigation and that he “was expressly authorized to defend and

represent the legal interests of all named defendants and make all necessary representations on

their behalf in accordance with [his] professional judgment.”32 Robertson also filed a letter that

his partner sent to Guidry’s attorney in October 2023 stating that their firm represented all

Defendants, including Robertson.33 Thus, as in Haynes and James, the notice of removal and the

record, as a whole, demonstrate that Robertson was acting on Brent’s behalf and that he had actual

authority to do so when he represented, subject to Rule 11, that Brent had consented to the removal.

See James, 2024 WL 4143582, at *8 (citing Haynes and denying remand where attorney was hired

to represent all defendants, stated in notice of removal that an out-of-state defendant consented to

removal, and filed a declaration explaining his authority to act for that defendant). Because

defendants have shown that Robertson had authority to act for Brent in consenting to removal, the

notice of removal satisfies the rule of unanimity.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

32 R. Doc. 8-2 at 1.

33 R. Doc. 8-3.

IT IS ORDERED that Guidry’s Motion to Remand (R. Doc. 5) is DENIED.

New Orleans, Louisiana, this 22nd day of October 2024.

DARREL JAMES PAPILLION

UNITED STATES DISTRICT JUDGE

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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