Hargrove v. Bridgestone/Firestone North American Tire, LLC, DOCKET NO. 10-CV-0318
| Decision Date | 02 March 2012 |
| Docket Number | DOCKET NO. 10-CV-0318 |
| Parties | JOHNNY HARLAN HARGROVE v. BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE, LLC, ET AL |
| Court | U.S. District Court — Western District of Louisiana |
MEMORANDUM ORDER
For the reasons stated herein, plaintiff's motion to remand [doc. 27] is DENIED.
This suit was originally brought on March 3, 2009, in the Fourteenth Judicial District Court, Calcasieu Parish, State of Louisiana. Doc. 1, att. 7. In the original complaint, plaintiff Johnny Harlan Hargrove named as defendants Bridgestone/Firestone, its insurers, and three executives, all citizens of the State of Louisiana for diversity purposes ("Louisiana Defendants"). Id. On November 9, 2009, plaintiff amended his complaint [doc. 1, att. 10] to include sixteen additional defendants ("Diverse Defendants"), all non-citizens of the State of Louisiana for diversity purposes. See docs. 2, 5, 7, 11, 15, 16, 18, 19, 22-24, 41.
Diverse Defendant Flint Hills sought removal of this suit on February 25, 2010, based on a belief that "the plaintiff compromised and released his claims against [Louisiana Defendants] prior to the filing of the [amended complaint] on November 19, 2009." Doc. 1, p. 9. The reasons for these "beliefs" were supplied in affidavits included with the removal notice. In support defendant Flint Hills submitted an affidavit from attorney for Diverse Defendant Foot Hills Resources, LP, stating that, in a conversation with plaintiff's counsel, plaintiff's counsel"represented that prior to the filing of the First Supplemental and Amending Petition, [Louisiana Defendants] had entered into an agreement to compromise and settle the claims asserted . . . ." Doc. 1, att. 3, p. 2. Counsel for another Diverse Defendant also testified that a paralegal for plaintiff had informed her that plaintiff had "reached a settlement with [Louisiana Defendants] and dismissal documents had been executed . . . ." Doc. 1, att. 4, p. 1.
On March 16, 2010, Diverse Defendant Flint Hills received discovery responses that confirmed plaintiff had in fact settled with Louisiana Defendants on November 1, 2009. Doc. 43, att. 1. The settlement agreement mandated that plaintiff file for dismissal of Louisiana Defendants in state court within "ten (10) days of execution of this Agreement," which would have been December 3, 2009. Id. at p. 10. Plaintiff, however, obviously had not filed for dismissal in state court as required and Diverse Defendants had no definitive knowledge of settlement until receipt of those discovery responses on March 16, 2010. Id. at p. 4. At this point, the case had been pending in state court for one year and thirteen days.
On March 23, 2010, plaintiff filed a motion to remand claiming there was no basis for removal at the time Diverse Defendant's original notice was filed as Louisiana Defendants had not been dismissed. Doc. 27, p.1. On April 12, 2010, all defendants filed a joint opposition to the motion to remand. Doc. 43.
On April 15, 2010, in response to Plaintiff's March 16, 2010, discovery responses Diverse Defendants moved for leave to supplement their original notice of removal [doc. 1] to assert that jurisdiction did in fact exist at the time of removal, that it was no longer just a belief. Doc. 44. This motion for leave was granted September 3, 2010, [doc. 51] and the supplemental notice was docketed that same day. Doc. 52.
After examining the unique issues involved in this remand, this court issued an order[doc. 55] requesting that the parties "provide additional briefing on the issue of whether the rule of unanimity as defined in Getty Oil Corp. v. Ins. Co. of N. America, 841 F.2d 1254 (5th Cir. 1988) has been satisfied in this proceeding." Id. Plaintiff and defendants timely responded to the court's order. Docs. 58, 59.
Section 1441 of Title 28, United States Code, provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). If removal is based on diversity of citizenship, the action is removable only if there is complete diversity and "none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b).
28 U.S.C. § 1446(b). In any event when the basis of jurisdiction is diversity of citizenship a case may not be removed "more than one year after commencement of the action." Id
So analysis of timeliness of removal in a diversity action requires two separate considerations: (1) was the notice of removal filed within thirty days of the receipt of the initial pleading or, if not removable initially, within thirty days of receipt of the "other paper" from which defendant ascertained the matter became removable; and (2) was the notice of removal filed within one year of commencement of the action?
One final point pertinent to our consideration here is that § 1446(b) has been interpreted to require that all served defendants join in the removal petition within thirty days of ascertaining that the case has become removable. Getty, 841 F.2d at 1262. This is commonly referred to as the rule of unanimity.
There is no question but that this suit was initially non-removable because diversity was lacking. There is also no question that at this point diversity exists because all non-diverse defendants have been dismissed and new diverse defendants were added. Plaintiff maintains however that remand is in order because non-diverse defendants named in the original complaint had not been dismissed before removal. Plaintiff also maintains that the notice of removal was filed more than thirty days following filing of the amended complaint that named Diverse Defendants and therefore was not timely. See generally Doc. 27, Att. 1. Finally plaintiff argues that because suit was filed March 3, 2009, and because non-diverse defendants had not been dismissed at the time the original notice was filed, "[p]ursuant to 28§1466 (sic), this matter was pending for over a year and is not subject to removal." Doc. 27, Att. 1, p. 3.
Defendants oppose the remand. Doc. 43. The burden of proof for establishing federal jurisdiction and avoiding remand is placed on defendants, the parties seeking removal and is to be construed narrowly and in favor of remand to state court. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)).
The mere presence of non-diverse defendants in this litigation at the time of removal does not render the removal improper. The question is whether the non-diverse defendants were truly"present" in this litigation and the answer to that they were not. Upon plaintiff's voluntary action in terminating his claims against the non-diverse defendants through compromise, those parties became nominal parties and presented no bar to this removal.
As noted earlier 28 U.S.C. § 1446(b) allows removal even when not removable originally once it is "ascertained that the case . . . has become removable . . . ;" however, that leave to remove has been jurisprudentially limited by development of the "voluntary-involuntary" rule. That rule holds that "an action nonremovable when commenced may become removable thereafter only by the voluntary act of the plaintiff." Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967) (). For example, diverse defendants cannot remove a suit when non-diverse defendants have been dismissed pursuant to a directed verdict or a similar action by the court because that directed verdict is not voluntary or done by plaintiff. Weems, 380 F.2d at 548; see also Canova v. C.R.C., Inc. of La., 602 F.Supp. 817, 818 (M.D. La. 1985) (citing Phillips v. Unijax, 625 F.2d 54 (5th Cir. 1980)) ( that "the Fifth Circuit has recently described Weems as reaffirming the 'voluntary-involuntary rule'").
When, as here, there is a voluntary action by the plaintiff, i.e. the execution of settlement documents showing no intention of proceeding against those particular defendants, the case becomes removable.1 See e.g. Taco Tico of New Orleans, Inc. v. Argonaut Great Central Ins. Co., No.09-3502, 2009 WL 2160436, *2 (E.D. La. July 16, 2009) (quoting Estate of Martineau v. ARCO Chemical Co., 203 F.3d 904, 910 (5th Cir. 2000)) ("Defendants who have settled are nominal parties who are 'no longer effectively a party to the case.'"); Green v. City Services Refinery, No. 06-330, 2007 WL 2008526, *3 (W.D. La. Feb. 22, 2007) (); Erdey v. American Honda Co., Inc., 96 F.R.D. 593, 599 (M.D. La. 1983) (citing Kilpatrick v. The Arrow Co., 425 F.Supp. 1378 (W.D. La. 1977)) ("Settlement by plaintiff with all non-diverse defendants has been held to render the case removable."); Hammons v. Ohio Cas. Ins. Co., No. 09-30-KSF, 2009 WL 997098 (E.D. Ky. Apr. 14, 2009) (same).
Plaintiff argues that because "the dismissal of [Louisiana Defendants] was...
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