Coffman v. Dole Fresh Fruit Co., Civil Action No. 1:12–CV–420.

• Court: United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
• Writing for the Court: MARCIA A. CRONE
• Citation: 927 F.Supp.2d 427
• Parties: Abe COFFMAN, Plaintiff, v. DOLE FRESH FRUIT COMPANY and Chevron Port Arthur Lubrication Plant, Defendants.
• Docket Number: Civil Action No. 1:12–CV–420.
• Decision Date: 26 February 2013

927 F.Supp.2d 427

Abe COFFMAN, Plaintiff,
v.
DOLE FRESH FRUIT COMPANY and Chevron Port Arthur Lubrication Plant, Defendants.

Civil Action No. 1:12–CV–420.

United States District Court,
E.D. Texas.

Feb. 26, 2013.

[927 F.Supp.2d 429]

Matthew Christopher Matheny, Provost Umphrey, Beaumont, TX, for Plaintiff.

Gerard J. Kimmitt, II, Jacob Esparza, Legge, Farrow, Kimmitt, McGrath & Brown, LLP, Houston, TX, Michael Thomas Bridwell, Sophia L. Lauricella, Strong Pipkin Bissell & Ledyard, Beaumont, TX, for Defendants.

MEMORANDUM AND ORDER
MARCIA A. CRONE, District Judge.

Pending before the court is Plaintiff Abe Coffman's (“Coffman”) Motion to Remand (# 6). Coffman argues that the court lacks subject matter jurisdiction over this action because Defendant Dole Fresh Fruit Co. (“Dole”) did not obtain consent from Chevron Products Company (“Chevron”) to remove the case to federal court. Having considered the motion, the submissions of the parties, and the applicable law, the court is of the opinion that remand is warranted.

I. Background

On September 11, 2011, Coffman filed his original petition in the 60th Judicial District Court of Jefferson County, Texas, asserting claims for negligence against Dole and Chevron Port Arthur Lubrication Plant. Chevron's counsel, however, informed Coffman that the Port Arthur plant is not a separate entity. Coffman amended his petition to identify the defendant as Chevron, U.S.A., but did not alter the jurisdictional facts stating that Chevron is a Texas corporation. Chevron filed a general denial and asserted that the proper defendant is actually Chevron Products Company, a Pennsylvania corporation, with its principal place of business in the State of California. It is undisputed that Coffman is a citizen and resident of the State of Texas. Dole is a Nevada corporation, with its principal place of business in the State of California.

On August 27, 2012, after discovering the true citizenship of Chevron, Dole removed the case to this court on the basis of diversity of citizenship, alleging that complete diversity exists among the real parties in interest and that the amount in controversy exceeds $75,000.00, exclusive of interest and costs. On September 26, 2012, Coffman filed a motion to remand

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the case to state court, contending that Chevron did not consent to the removal of the case. In response, Dole asserts that Chevron, in fact, consented to removal by filing its answer without opposing the removal or challenging the jurisdiction of the court. In the alternative, Dole contends that because Chevron was fraudulently joined as a defendant to defeat diversity, its consent was not required for removal.

II. Analysis

“ ‘Federal courts are courts of limited jurisdiction.’ ” Rasul v. Bush, 542 U.S. 466, 489, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)); accord Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 292 (5th Cir.2010); Johnson v. United States, 460 F.3d 616, 621 n. 6 (5th Cir.2006); McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 337 (5th Cir.2004). “ ‘They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.’ ” Rasul, 542 U.S. at 489, 124 S.Ct. 2686 (quoting Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 (citations omitted)). The court “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied,534 U.S. 993, 122 S.Ct. 459, 151 L.Ed.2d 377 (2001) (citing Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673);see also Hertz Corp. v. Friend, 559 U.S. 77, 130 S.Ct. 1181, 1194, 175 L.Ed.2d 1029 (2010); Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir.2005). In an action that has been removed to federal court, a district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction. See28 U.S.C. § 1447(c); Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004); In re 1994 Exxon Chem. Fire, 558 F.3d 378, 392 (5th Cir.2009); McDonal v. Abbott Labs., 408 F.3d 177, 182 (5th Cir.2005).

When considering a motion to remand, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002); accord DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.2008); In re Hot–Hed Inc., 477 F.3d 320, 323 (5th Cir.2007); Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir.2005); Boone, 416 F.3d at 388. “ ‘This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute.’ ” Roth v. Kiewit Offshore Servs., Ltd., 625 F.Supp.2d 376, 382 (S.D.Tex.2008) (quoting Albonetti v. GAF Corp.–Chem. Grp., 520 F.Supp. 825, 827 (S.D.Tex.1981)); accord Crossroads of Tex., L.L.C. v. Great–West Life & Annuity Ins. Co., 467 F.Supp.2d 705, 708 (S.D.Tex.2006); Smith v. Baker Hughes Int'l Branches, Inc., 131 F.Supp.2d 920, 921 (S.D.Tex.2001). “Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citing 28 U.S.C. § 1441(a)); see Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004); Halmekangas, 603 F.3d at 294;Gutierrez, 543 F.3d at 251. “The removal statute ties the propriety of removal to the original jurisdiction of the federal district courts.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir.1997); see28 U.S.C. § 1441(a); Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 n. 2 (5th Cir.2003). Because removal raises significant federalism

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concerns, the removal statutes are strictly and narrowly construed, with any doubt resolved against removal and in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Gutierrez, 543 F.3d at 251;Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281–82 (5th Cir.2007); In re Hot–Hed Inc., 477 F.3d at 323.

Federal courts have subject matter jurisdiction and are authorized to entertain causes of action only where a question of federal law is involved or where there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. See28 U.S.C. §§ 1331, 1332; Arbaugh v. Y & H Corp., 546 U.S. 500, 513, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005); Halmekangas, 603 F.3d at 294;McDonal, 408 F.3d at 181. In order to determine whether jurisdiction is present in a removed action, the claims set forth in the state court petition are considered as of the date of removal. See Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 391, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998); Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 n. 2 (5th Cir.2007); McGowin v. ManPower Int'l, Inc., 363 F.3d 556, 558 n. 1 (5th Cir.2004); Manguno, 276 F.3d at 723. In removed cases where, as here, there is no suggestion that a federal question is involved, subject matter jurisdiction exists only if there is complete diversity among the parties and the amount in controversy exceeds $75,000.00. See28 U.S.C. § 1332; Lincoln Prop. Co., 546 U.S. at 89, 126 S.Ct. 606;Exxon Mobil Corp., 545 U.S. at 552, 125 S.Ct. 2611;Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996); Halmekangas, 603 F.3d at 294;Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 323 (5th Cir.), cert. denied,534 U.S. 997, 122 S.Ct. 468, 151 L.Ed.2d 384 (2001). Complete diversity requires that no plaintiff be a citizen of the same state as any defendant. See Exxon Mobil Corp., 545 U.S. at 552, 125 S.Ct. 2611;Caterpillar Inc., 519 U.S. at 68, 117 S.Ct. 467;Wallace v. La. Citizens Prop. Ins. Corp., 444 F.3d 697, 702 (5th Cir.2006); Heritage Bank, 250 F.3d at 323. Furthermore, removal is appropriate only if none of the parties properly joined and served as defendants are citizens of the state in which the action was brought. See28 U.S.C. § 1441(b); Lincoln Prop. Co., 546 U.S. at 89, 126 S.Ct. 606;Gasch, 491 F.3d at 281;Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 531–32 (5th Cir.), cert. denied,548 U.S. 907, 126 S.Ct. 2945, 165 L.Ed.2d 956 (2006).

A. Consent to Removal1. General Rule

The procedure for effectuating removal is set forth in 28 U.S.C. § 1446.¹

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Johnson v. Heublein, Inc., 227 F.3d 236, 240 (5th Cir.2000); see In re 1994 Exxon Chemical Fire, 558 F.3d at 391;Bd. of Regents of Univ. of Tex. Sys. v. Nippon Tel. & Tel. Corp., 478 F.3d 274, 278 (5th Cir.2007); City of Clarksdale v. BellSouth Telcomms., Inc., 428 F.3d 206, 210 (5th Cir.2005). Section 1446(a) provides:

A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
28 U.S.C. § 1446(a). While not stated explicitly in the statute, removal generally requires the joinder or consent of all the named and served defendants. See Rico v....