Diebel v. S.B. Trucking Co.
| Decision Date | 09 April 2003 |
| Docket Number | No. 6:02CV1357-ORL-22DAB.,6:02CV1357-ORL-22DAB. |
| Parties | Karen S. DIEBEL, Plaintiff, v. S.B. TRUCKING COMPANY Hi Performance Truck Sales, Inc. and Robert L. Jackson. Jr. Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Michael Charles Maher, Robin Mary Orosz, Maher, Guiley & Maher, PA.., Winter Park, for Karen S. Diebel, as Personal Representative of the Estate of N. Donald. Diebel, Jr., plaintiff.
Kurt M. Spengler, Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Russell K. Dickson, Jr., Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for S.B. Trucking Company, a Florida corporation, Hi Performance Truck Sales, Inc., a foreign corporation, Robert L. Jackson, Jr., defendants.
This cause comes before the Court for consideration of Plaintiffs, Karen S. Diebel ("Plaintiff), Motion to Remand and for Award of Attorney's Fees and Costs (Doc. No. 17). The Plaintiff filed her Motion (Doc. No. 17) and a memorandum in support (Doc. No. 18) on December 12, 2002. The Defendants, S.B Trucking Company, Hi Performance Truck Sales, Inc., and Robert L. Jackson, Jr. ("Defendants"), responded on February 3, 2003. Having reviewed the Motion and memoranda,'this Court GRANTS IN PART and DENIES IN PART the Plaintiffs Motion; to-Remand and for Award of. Attorney's; Fees and Costs (Dot. No. 17). Insofar, as the Plaintiff moves for remand; attorney's fees and cost the Motion is DENIED;
The Plaintiff is a citizen of the State of Florida,1 and is the personal representative of the Estate of Dr. N. Donald Diebel, Jr: (Dr.Diebel"),2 her husband.3 The Defendant, S.B. Trucking Company ("S.B.Trucking"), is a trucking company with its principal place of business in the State of Georgia.4 The Defendant, Hi Performance Truck Sales, Inc. ("Hi Performance''), is a Georgia corporation; its principal place of business is also located in the State of Georgia.5 The Defendant, Robert L. Jackson Jr. ("Jackson"), is a citizen of the State of Georgia.6 This action is for personal injuries arising out of a tractortrailer accident on the Florida Turnpike.7
On June 8, 2002, while Dr. Diebel was rendering assistance to occupants of a vehicle involved in an automobile accident on the Florida Turnpike in Sumter County, Florida, the tractor-trailer Jackson allegedly was driving struck and killed Dr. Diebel.8 . Plaintiff asserts that Jackson's negligence caused the secondary accident and, thus, Diebel's death.9 At the time of the accident, S.B. Trucking and Hi Performance i were allegedly the titled and/or ben'eficiak owners of the tractor-trailer.10
On July 26, 2002, the Plaintiff filed suit against-the Defendants pursuant to Florida's Wrongful Death Act, Fla. Stat. §§ 768.16-768.27, alleging causes of action for `negligent operation, maintenance, and/or control of the tractor-trailer.11 The lawsuit was filed in the Ninth Judicial Circuit Court, in and for Orange County, Florida ("the state court").12
On September 14, 2002, Hi Performance was served with a Summons and Complaint.13 Hi Performance responded by filing an Answer and Affirmative Defenses.14
Subsequently, on October 23, 2002, S.B. Trucking and Jackson were served with a Summons and Complaint.15 According to the Plaintiff, her delay in serving S.B Trucking and Jackson was "not intentional or in bad faith." 16 Rather, such service was delayed by the fact that the initial process server lost the original Summons and Complaint.17
On November 13, 2002, S.B. Trucking and Jackson filed a Notice of Removal, from the state court to this Court pursuant to 28 U.S.C. §§ 1441(a) & (b)18 and 1332(a);19 removal was based on diversity jurisdiction.20 The Notice of Removal provided, in pertinent part, as follows:
"The undersigned attorney has been authorized by Defendant, ROBERT L. JACKSON and S.B. TRUCKING COMPANY, to file this Notice of Removal of Cause."21
Hi Performance did not explicitly join in or consent to removal to the Middle District of Florida. In addition, the Notice of Removal fails to indicate whether counsel for S.B: Trucking and Jackson were authorized' by Hi Performance to remove this action. This is problematic because at all times relevant herein Hi Performance had its own attorney.22
S.B. Trucking and Jackson submitted Answers and Affirmative Defenses' at the same time, they filed their Notice'of Removal.23 Simultaneously, Hi Performance's Answer and Affirmative Defenses were transferred from the state, court to this Court.24
On December 11, 2002, S.B. Trucking and Jackson filed a voluntary petition for bankruptcy in the Middle District of Georgia pursuant to Chapter 13 of the United States Bankruptcy. Code,25 The following day, the plaintiff filed the' instant Motion to Remand and for Award of Attorney's Fees and Costs26 and memorandum in support"27 pursuant to 28 U.S.C. § 1447(c).28
The Plaintiff raises three arguments for remanding this cause back to the state court.29
Foremost, the Plaintiff argues that the Defendants' Notice of Removal was untimely.30 Pursuant to 28 U.S.C. § 1446(b), a "notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading." Since the first Defendant, Hi Performance, was served on September 14, 2002, and the Notice of Removal was not filed until November 13, 2002, the Plaintiff contends that the notice was not filed within the applicable limitations period.31
In response to that argument, S.B. Trucking and Jackson contend that the Notice of Removal was timely because they were not served until October 23, 2002 and the Notice of Removal was filed within thirty days of that date.32 According to the Defendants, this Court should disregard the September 14, 2002 service on Hi Performance because Hi Performance failed to exercise its removal right within the thirty day period before S.B. Trucking and Jackson were served, and it would be unfair to bind an "un-served defendant to a previously served defendant's decision or neglect in failing to timely remove the case to Federal Court."33
The Plaintiff next argues that remand is appropriate because the Notice of Removal fails to indicate the status of Hi Performance.34 According to the Plaintiff, the complete absence of any allegations concerning Hi Performance renders 28 U.S.C § 1441 unavailable as a possible basis for removal because under that provision all the Defendants must consent to removal.35
In response, S.B. Trucking and Jackson argue that the consent of Hi Performance is unnecessary because that Defendant is merely a "nominal" or "formal" party to this litigation.36 Alternatively, the Defendants argue that Hi Performance, may timely consent to the Notice of Removal because a petition for removal is `timely where all of the defendants who "are required to join or consent, do so within thirty days of receipt of the noticed.37 In that connection, the Defendants state as follows:
In this case, JACKSON and S.B. TRUCKING filed their Notice of Removal on November 13, 2002, and consent by HI-PERFORMANCE would ordinarily be required no later than December 13, 2002. However, Defendant JACKSON d/b/a S.B. TRUCKING filed a Voluntary Petition for Bankruptcy on December 11, 2002, prior to the commencement [sic] of this 30-day period. This action, as well as any applicable limitations periods, is therefore tolled until such time that the Plaintiff obtains relief from the automatic stay imposed by § 362(a)38 of the U.S. Bankruptcy Code.39
S.B. Trucking and Jackson additionally claim that Hi Performance, has consented to removal by formally demanding, on December 17, 2002, that Jackson, and S.B. Trucking tender Hi Performance a defense against the Plaintiffs claim.40 According to S.B. Trucking and Jackson, 41
The Plaintiffs final argument for remand is that the Defendants have not satisfactorily established diversity of citizenship.42 In that regard, the Plaintiff states as follows:
It is Plaintiffs contention that the Defendant, S.B. TRUCKING COMPANY, is a corporation ... If S.B. TRUCKING COMPANY is a corporation, as alleged by the Plaintiff and unrefuted by the Defendants, the Defendants have not established the corporate citizenship of S.B. TRUCKING COMPANY, as they have hot specifically alleged S.B. TRUCKING COMPANY place of incorporation and its principal place of business.43
The Plaintiff emphasizes this omission because the Florida Secretary of State's records indicate that S.B. Trucking, which" listed Jackson. as its registered agent, was', incorporated in the State of Florida as for profit corporation until it was administratively dissolved in 2001 for failure to file an annual report,44
In response to that argument, S.B Trucking and Jackson argue that "S.B. TRUCKING COMPANY is not incorporated in any state, and exists as a trade name `d.b.a' of ROBERT L. JACKSON, J.R. in the State of Georgia."45
The Constitution and Congress limit a federal court's jurisdiction by restricting the types of cases which the federal courts may hear. See. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391(1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994).
For this reason, statutes authorizing removal of actions to federal courts are to be strictly construed against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 85...
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