Alford v. Chevron U.S.A. Inc.
| Decision Date | 06 January 2014 |
| Docket Number | CIVIL ACTION NO: 13-5457 |
| Parties | CATHERINE P. ALFORD, ET AL. v. CHEVRON U.S.A. INC., ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiffs move to remand this matter to state court,1 and defendant Chevron U.S.A., Inc. moves to amend its Notice of Removal.2 For the following reasons, the Court GRANTS plaintiffs' motion, DENIES Chevron's motion, and remands this case to state court.
Plaintiffs filed this lawsuit on May 2, 2013, in the 25th Judicial District Court for the Parish of Plaquemines.3 Plaintiffs then filed two supplemental amending petitions, one on May 3, 2013,4 and one on July 30, 2013.5 Plaintiffs served all of the defendants during the period between August 6, 2013, andAugust 12, 2013.6 On August 16, 2013, Chevron timely removed the action to this Court.7 Chevron's Notice of Removal states that the Court has diversity jurisdiction over this lawsuit because the parties are completely diverse and the amount in controversy exceeds $75,000.8
Chevron stated in the Notice of Removal that plaintiffs had failed to serve defendants Laurent Oil & Gas, L.L.C., and Malloy Energy Company, L.L.C. as of the time of removal.9 In fact, plaintiffs served Laurent on August 6, 2013,10 and Malloy on August 12, 2013.11 Chevron attached to the Notice of Removal the written statements of consent to removal of the other four parties in the lawsuit,12 but it did not allege that it had obtained the consent of Laurent or Malloy to remove.
On September 12, 2013, plaintiffs filed this motion to remand, arguing that Chevron's Notice of Removal is defective because Laurent and Malloy did not consent in writing to theremoval. Defendants respond that they were not required to obtain the consent of Laurent and Malloy because those defendants were improperly joined. Defendants also contend that, even if Laurent and Malloy were properly joined, the "exceptional circumstances" of this case obviated the need for their consent to remove. Additionally, defendant Noble argues that remand is unwarranted because, in addition to being improperly joined, Malloy was improperly served under the Louisiana Long-Arm Statute. Chevron seeks to amend the Notice of Removal to specify the reason for not obtaining consent from Laurent and Malloy.
Plaintiffs reply that Chevron's failure to explain why Laurent and Malloy did not consent to removal rendered the Notice of Removal procedurally defective, and that Chevron cannot now cure that defect through amendment because the thirty-day deadline set forth by 28 U.S.C. § 1446(b) has passed. Plaintiffs also argue that they served both Laurent and Malloy properly and that there are no "exceptional circumstances" justifying a departure from the usual rule that all of the defendants must consent to removal.
At oral argument, plaintiffs' counsel conceded that plaintiffs sued Laurent by mistake and that Laurent is not a proper party to this case. Accordingly, the Court will limit its analysis to whether Chevron's failure to obtain Malloy's consent rendered the Notice of Removal defective.
A defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction over the lawsuit. See 28 U.S.C. § 1441(a). A district court has original jurisdiction in cases in which the amount in controversy exceeds $75,000, and the parties are citizens of different states. 28 U.S.C. § 1332. Removal of a case is timely if the notice of removal is filed within thirty days of service of the initial pleading on the defendant. 28 U.S.C. § 1446(b). The thirty-day limit is not jurisdictional. Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1263 (5th Cir. 1988). Nevertheless, because removal raises significant federalism concerns, courts construe removal requirements strictly, and "any doubt as to the propriety of removal should be resolved in favor of remand." See Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (quoting In re Hot-Hed, Inc., 477 F.3d 320, 323 (5th Cir. 2007)); Aucoin v. Gulf S. Pipeline Co., No. 04-CV-0284, 2004 WL 1196980, at *1 (E.D. La.May 26, 2004); see also 17 James Wm. Moore, et al., Moore's Federal Practice § 107.05 (3d ed. 2013) ().
In cases with multiple defendants, the Fifth Circuit traditionally followed the first-served defendant rule, under which all of the defendants had to join in the removal within thirty days of the date of service on the first defendant. Getty Oil, 841 F.2d at 1262-63. But, pursuant to a 2011 statutory amendment adopting the last-served rule, section 1446(b) now states that each defendant has "30 days after receipt by or service on that defendant of the initial pleading or summons . . . to file the notice of removal." 28 U.S.C. § 1446(b)(2)(B).13 In other words, the thirty-day period now extends until thirty days after the last defendant is served.
In revising section 1446(b), Congress also codified the "rule of unanimity." See, e.g., Tilley v. Tisdale, 914 F. Supp. 2d 846, 848-49 (E.D. Tex. 2012). Under § 144 6(b)(2)(A), "all defendants who have been properly joined and served must join inor consent to the removal of the action" to federal court. "This does not mean that each defendant must sign the original petition for removal," but the Fifth Circuit requires "some timely filed written indication from each served defendant . . . that it has actually consented to such action." Getty Oil, 841 F.2d at 1262 n.11. Although section 1446(b), as revised by the 2011 amendment, does not explicitly mandate that all defendants consent to removal in writing, the Court finds no indication that the Fifth Circuit's requirement of written consent is inconsistent with or displaced by the statutory change. Indeed, Congress's codification of the unanimity rule signals the importance of ensuring that all of the defendants have consented to removal. Crowley v. Amica Mut. Ins. Co., No. 12-CV-0775, 2012 WL 3901629, at *2 n.11 (E.D. La. Sep. 7, 2012).
Thus, if written consent on the part of all defendants is lacking when the thirty-day removal period elapses, the notice of removal is deemed defective and the case must be remanded. Ortiz v. Young, 431 F. App'x 306, 307 (5th Cir. 2011); see also Crowley, 2012 WL 3901629, at *3 ().
The Court finds that this lawsuit must be remanded to state court because (1) service on Malloy was proper under the Louisiana Long-Arm Statute; (2) Chevron's Notice of Removal was defective because it did not include Malloy's consent or explain why Malloy's consent was unnecessary; (3) Chevron may not now amend the Notice of Removal to cure these defects; and (4) this case does not present exceptional circumstances that obviated the need for Malloy's consent.
The Court first addresses defendant Noble's contention that Malloy was not properly served because the citation contained an incorrect deadline for Malloy to respond and because the plaintiffs failed to file an affidavit of service before the case was removed.
Plaintiffs served Malloy under the Louisiana Long-Arm Statute, La. Rev. Stat. § 13:3201, et seq. The section of that statute entitled "Service of Process" provides in relevant part that "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 . . . when the person is located outside of this state . . . ." La. Rev. Stat. § 13:3204. In compliance with this provision, plaintiff sent the citation viacertified mail to Malloy.14 Malloy received it on August 12, 2013.15 The citation states that Malloy was "summoned to comply with the demand contained in the . . . Petitions . . . or make an appearance either by filing a pleading or otherwise . . . within thirty (30) days after service hereof, under the penalty of default."16 Noble argues that this citation was deficient under the Louisiana Long-Arm Statute because of the following provision:
No default judgment can be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show case, or other summary proceeding . . . until thirty days after the filing in the record of the affidavit of the individual who . . . [m]ailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the defendant.
La. Rev. Stat. § 13:3205. Noble's contention is apparently that the citation here, rather that identifying the date the affidavit of service was filed as the date triggering the running of the thirty-day period, improperly stated that the service itself triggered the period.
The Court finds this argument unconvincing. Noble has not provided -- and the Court has been unable to find -- authority for the proposition that a citation stating that the defendantmust respond within thirty days of "service" is deemed void under Louisiana law. The cases Noble cites for the proposition that "[c]itation and...
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