Fernando Garcia v. Mvt Services, Inc.
| Decision Date | 15 July 2008 |
| Docket Number | Civil Action No. 08-CV-192-KC. |
| Parties | Jesus FERNANDO GARCIA, and Maria De Lourdes Garcia, as wrongful death beneficiaries of Jesus Fernando Garcia, Jr., deceased, Plaintiffs, v. MVT SERVICES, INC., Defendant. |
| Court | U.S. District Court — Western District of Texas |
James B. Kennedy, Jr., James Kennedy, P.L.L.C., Roger C. Davie, Attorney at Law, El Paso, TX, for Plaintiffs.
Darryl Scott Vereen, Mounce, Green, Myers, Safi & Galatzan, El Paso, TX, for Defendant.
On this day, the Court considered Plaintiffs' "Motion to Remand" ("Plaintiffs' Motion"); Defendant's "Response to Plaintiffs['] Motion for Remand" ("Defendant's Response"); and Plaintiffs' "Reply and Request for Attorneys' Fees" ("Plaintiffs' Reply"). After due consideration, for the reasons set forth herein, Plaintiffs' Motion is GRANTED.
On August 22, 2007, Plaintiffs filed their Original Petition in the 171st Judicial District Court, El Paso County, Texas, in the case styled Jesus Fernando Garcia and Maria de Lourdes Garcia, as wrongful death beneficiaries to Jesus Fernandez Garcia, Jr., Deceased v. Ahmed M. Egal, Deceased, PDQ/TL Express, Inc., MVT Services, Inc., MVT Transportation, LP, and Messilla Valley Transportation, Inc., Cause No. 2007-3856 ("the State Court Action"). In their Original Petition, Plaintiffs claimed MVT Services, Inc. ("MVT Services" or "Defendant") was vicariously liable for the wrongful death of Plaintiffs' son after Plaintiffs' son died in a vehicular collision while riding as a passenger in a truck driven by an individual alleged to be an MVT Services Employee. Pls.' Original Pet. 5.1 Plaintiffs also claimed damages in an unspecified amount. Id. Plaintiffs sued five entities, at least one of which is allegedly not diverse in citizenship from Plaintiffs, who are Texas citizens. See id. 1-2 ().
On September 21, 2007, MVT Services received a copy of Plaintiff's Original Petition and Summons. See U.S. Postal Service, Certified Mail Receipt, September 21, 2007; Summons for MVT Services, September 7, 2007. At this time, all parties remained in the case as they were identified in the caption. On October 1. 2007— before Defendant made its first appearance in the State Court Action—Plaintiffs non-suited Ahmed Egal and PDQ/TL Express, Inc. The state court filed a corresponding order dismissing Egal and PDQ/TLE Express, Inc., on October 2, 2007. On October 11, 2007, Plaintiffs' attorney James Kennedy sent a demand letter by facsimile to MVT Services's attorney Darryl Vereen, and offered to settle the case for $750,000. Facsimile from James Kennedy to Darryl Vereen, October 11, 2007. Neither party has filed evidence of a response.
On October 12, 2007, Defendant MVT Services filed its Original Answer to Plaintiff's Original Petition, generally denying Plaintiffs' claims. On October 22, 2007, Plaintiffs non-suited MVT Transportation, LP and Messilla Valley Transportation, Inc. The state court entered a corresponding order dismissing MVT Transportation, LP, and Messilla Valley Transportation, Inc. on November 13, 2007. As of November 13, 2007, MVT Services—a New Mexico citizen and a party whose citizenship is diverse from Plaintiffs—was the only remaining defendant in the State Court Action.
On April 29, 2008, Plaintiffs filed their First Amended Petition, once again claiming MVT Services was vicariously liable for the purported negligent acts of its alleged employee, and sought $6,000,000 in damages. Pls.' First Am. Pet. 3-5. On May 23, 2008, MVT Services filed its Notice of Removal to this Court.
On June 5, 2008, Plaintiffs filed their instant Motion, arguing that Defendant's Notice of Removal was untimely because removal must take place within 30 days of when a case first becomes removable, and this case became removable in October or November 2007 with the nonsuit of the last non-diverse party. Pls.' Mot. 2-3. On June 16, 2008, Defendant MVT Services filed its Response. On June 26, 2008, Plaintiffs filed their reply.
A defendant may remove a case to the federal district court in the division embracing the place where such action is pending in state court. 28 U.S.C. § 1441(a). The district court is required to remand a case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction over the case. 28 U.S.C. § 1447(c). The removal statutes are to be construed strictly against removal and in favor of remand. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988); Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir.1986). Where the jurisdiction of the court is challenged, the burden is on the party seeking to preserve the district court's removal jurisdiction. Frank v. Bear Stearns & Co., 128 F.3d 919, 921-22 (5th Cir.1997); Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., 99 F.3d 746, 751 (5th Cir. 1996).
This Court has jurisdiction over removed cases where the parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1332, 1441. A defendant may remove an action only "if there is complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State." Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005); see also Freeman v. Nw. Acceptance Corp., 754 F.2d 553, 555 (5th Cir.1985).
Neither party disputes that at the time Defendant MVT Services received the initial pleading in the State Court Action, the case was not removable, as there was at least one defendant who was nondiverse from Plaintiffs (i.e. Ahmed Egal).2 See Pls.' Original Pet. 2. Plaintiffs argue, however, that the case became removable when Plaintiffs nonsuited all other defendants in October and November 2007, leaving only MVT Services as defendant, whose citizenship is diverse from Plaintiffs. Pls.' Mot. 4. Because MVT Services did not remove the case until May 23, 2008, more than six months later, Plaintiffs argue removal is untimely. Id.
Defendant MVT Services argues, however, that it never actually received the order non-suiting the nondiverse party until Plaintiff filed its Motion to Remand in this Court. Def.'s Resp. 2. Defendant therefore based removal upon Plaintiff's Amended Petition in the State Court Action. Id. Defendant further argues that the state court filed the order non-suiting the nondiverse party before Defendant even appeared as a party in the State Court Action. Id. at 3. Therefore, Defendant argues, the 30-day clock on removal did not run until Plaintiffs filed its First Amended Petition in the State Court Action on April 28, 2008, which notified Defendant that it was the only remaining party and that the amount in controversy—unspecified until then in the pleadings—met the minimum threshold for diversity jurisdiction. Id. at 3-4.
Regarding the deadlines for removal, Title 28, U.S.C. § 1446(b) states:
The 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 setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
28 U.S.C. § 1446(b).
The nondiverse party in the instant case—Ahmed Egal—was nonsuited on October 2, 2007, after Defendant received service of process in the State Court Action on September 21, 2007, but before Defendant first appeared and filed its answer on October 12, 2007. See Order of Non-Suit of All Claims Against Defendants Ahmed M. Egal and PDQ/TL Express, Inc., Without Prejudice, Oct. 2, 2007; Def. MVT Servs., Inc.'s Original Answer, Oct. 12, 2007. Neither party has presented evidence that Defendant ever actually received the order nonsuiting the nondiverse party. Therefore, the issue before the Court is whether Defendant "received" an order in the State Court Action sufficient for the purposes of § 1446(b) when the state court entered the order after Defendant had been served but before Defendant appeared in the case. Neither party has provided examples of case law directly on point with this issue, nor has the Court found any.
The Court first notes that the cases that Defendant points to in support of his argument that actual physical receipt is necessary are inapposite. Defendant first points to Walters v. Grow Group, Inc., 907 F.Supp. 1030 (S.D.Tex.1995), where the court held that "actual receipt by a defendant of a complaint is sufficient to commence thirty day period for removal regardless of the technicalities of state service of process requirements." Walters v. Grow Group, Inc., 907 F.Supp. 1030, 1033 (S.D.Tex.1995). However, Walters does not hold that actual receipt is a necessary pre-requisite—the issue before the Court today—only that it is a sufficient condition to run the clock. In addition, Walters was a case initially removable on the pleadings, and the court in Walters analyzes the language of the first paragraph of § 1446(b), not the second.3
Defendant's reliance on McCrary v. Kansas City Southern Railroad, 121 F.Supp.2d 566 (E....
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..."other paper" sufficient to put the diverse defendant on notice that a case has become removable. See Fernando Garcia v. MVT Servs., Inc., 589 F. Supp. 2d 797, 803-04 (W.D. Tex. 2008) ("The receipt by Defendant ofa settlement agreement between Plaintiffs and the nondiverse defendant, which ......
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