Friedrich v. Whittaker Corp.
| Decision Date | 27 March 1979 |
| Docket Number | Civ. A. No. H-79-79. |
| Citation | 467 F. Supp. 1012 |
| Parties | Billy M. FRIEDRICH v. WHITTAKER CORPORATION et al. |
| Court | U.S. District Court — Southern District of Texas |
Jamail & Kolius, Houston, Tex., S. Gus Kolius, Houston, Tex., and Edward Woolery-Price, Columbus, Tex., for plaintiff.
Fulbright & Jaworski, Houston, Tex., Jack L. Allbritton, Houston, Tex., for defendants Whittaker Corp. and Dennis Dupree.
Baker & Botts, Houston, Tex., Joseph D. Cheavens, Houston, Tex., for defendant Noble Drilling Corp.
Royston, Rayzor, Vickery & Williams, Houston, Tex., Decatur J. Holcombe, Houston, Tex., for defendants Union Oil Co. of California and Buckley O'Day, Jr.
This cause of action for personal injury arises out of an accident which occurred on a fixed, offshore oil platform in the Gulf of Mexico on the Outer Continental Shelf of the United States and off the coast of Texas. Plaintiff filed suit in the District Court of Harris County, 165th Judicial District of Texas. The Defendants were served on the following dates:
Whittaker Corporation - 1-2-79
Noble Drilling Corporation - 11-20-78
Union Oil Company of California - 11-15-78
Dennis Dupress - 12-7-78
Buckley O'Day, Jr. - 12-13-78
On January 12, 1979, all Defendants joined in a petition for removal. Plaintiff now moves to remand the case to state court on the basis that the petition for removal was untimely filed. Plaintiff contends that since the removal petition was not filed within thirty days of the first date of service on a Defendant (Union Oil Company of California), the petition is untimely even though all Defendants subsequently consented to removal. Defendants counter by asserting that this court has exclusive jurisdiction of this case pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., and therefore should retain this case as a matter of discretion.
It is a general rule that all defendants, except purely nominal parties, who have been served and who may properly join in a removal petition, must so join in order to effect removal. 28 U.S.C. § 1441(a); 1A Moore's Federal Practice (Moore's) ¶ 0.1683.-5 pp. 447-448;. Perrin v. Walker, 385 F.Supp. 945 (E.D.Ill.1974); Tri Cities Newspapers Inc. v. Tri Cities Printing Pressmen and Assistants Local 349, 427 F.2d 325 (5th Cir. 1970). In other words, unanimity among all defendants substantively entitled to remove is required for removal. Section 1446(b) states that a petition for removal shall be filed within thirty days "after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading . . .." 28 U.S.C. § 1446(b). Since unanimity of all defendants is required for removal, the rule has evolved that if the first defendant served does not file a petition for removal within thirty days of service, he waives his right to remove. Thus subsequently served defendants who attempt to remove within thirty days of their service may not remove since they could not include the first defendant in their petition for removal. 1A Moore's ¶ 0.1683.-2 p. 451, n. 18, ¶ 0.1683.-5 p. 478; Transport Indemnity Co. v. Financial Trust Co., 339 F.Supp. 405 (C.D.Cal. 1972); Crocker v. A. B. Chance Co., 270 F.Supp. 618 (S.D.Fla.1967); Fugard v. Thierry, 265 F.Supp. 743 (N.D.Ill.1967); Hutchins v. Priddy, 103 F.Supp. 601 (W.D.Mo. 1952). Failure of a defendant to seek removal within the thirty day time limitation may not be cured retroactively by consenting to and joining a subsequently served defendant's petition for removal. Transport Indemnity Co. v. Financial Trust Co., supra; Perrin v. Walker, supra; Manis v. North American Rockwell Corp., 329 F.Supp. 1077 (C.D.Cal.1971); Maybruck v. Haim, 290 F.Supp. 721 (S.D.N.Y.1968). Although the thirty day time limitation is not jurisdictional, it is a formal rule of procedure, Adams v. Western Steel Building, Inc., 296 F.Supp. 759 (D.Colo.1969), which is strictly applied. Perrin v. Walker, supra; Vendetti v. Schuster, 242 F.Supp. 746 (W.D. Pa.1965).
Pursuant to 28 U.S.C. § 1447(c) a case removed "improvidently" shall be remanded to the state court. A removal is improvident if there is not compliance with the thirty day filing requirement. London v. United States Fire Ins. Co., 531 F.2d 257 (5th Cir. 1976); In Re Merrimack Mutual Fire Ins. Co., 587 F.2d 642 (5th Cir. 1978). Therefore, none of the Defendants having filed a petition for removal within thirty days of the first date of service on a Defendant, this case should be remanded to the state court, unless there is some other rule of law requiring some other treatment of the case. This court is convinced that there is such a rule, therefore the case shall not be remanded to the state court.
The jurisdiction of a federal court over a case removed from a state court is derivative in nature. If the state court lacks jurisdiction over the case, the federal court acquires none, although it might, in a similar suit originally brought in federal court, have had jurisdiction. 1A Moore's ¶ 0.1573 p. 47; General Investment Co. v. Lake Shore & Michigan Southern Ry. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244 (1922); Lambert Run Coal Co. v. Baltimore and Ohio R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671 (1922); Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939); Steele v. G. D. Searle Co., 483 F.2d 339 (5th Cir. 1973) reh. den. en banc, 485 F.2d 688, cert. denied 415 U.S. 958, 94 S.Ct. 1486, 39 L.Ed.2d 572 (1974). Therefore, if this case is one in which the federal courts have exclusive jurisdiction, the state court could not have had original jurisdiction. In such event, this court could not now maintain derivative jurisdiction and the case would have to be dismissed. The question thus becomes whether the federal courts have exclusive jurisdiction over personal injury claims arising out of accidents on fixed oil rigs in areas covered by the Outer Continental Shelf Lands Act. This court believes that the federal courts have such exclusive jurisdiction and therefore, lacking derivative jurisdiction, the case must be dismissed.
The congressional intent to place exclusive federal jurisdiction over the Outer Continental Shelf was explained by then District Judge, now Circuit Judge, Alvin B. Rubin in Fluor Ocean Services, Inc. v. Rucker Co., 341 F.Supp. 757, 759-860 (E.D.La. 1972):
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