Mayers v. Connell

• Decision Date: 31 December 1986
• Docket Number: Civ. A. No. 86-162-B,86-163-B.
• Parties: Albert J. MAYERS, III v. Levi E. CONNELL, et al. Brenda MAYERS v. Levi E. CONNELL, et al.
• Court: U.S. District Court — Middle District of Louisiana

651 F. Supp. 273

Albert J. MAYERS, III v. Levi E. CONNELL, et al.

Brenda MAYERS v. Levi E. CONNELL, et al.

Civ. A. Nos. 86-162-B, 86-163-B.

United States District Court, M.D. Louisiana.

December 31, 1986.

Donald S. Wingerter, Maxwell G. Kees, Baton Rouge, La., for plaintiffs.

Felix R. Weill, Watson, Blanche, Wilson & Posner, William F. Janney, Lane, Fertitta, Lane & Tullos, Baton Rouge, La., for defendants.

POLOZOLA, District Judge.

The sole issue before this court is whether this suit was properly removed from the state court.

This litigation arises out of a traffic accident which occurred on February 23, 1985 when a vehicle that was being operated by Levi E. Connell struck the vehicle which Albert Mayers, III was operating and his wife Brenda was riding as a passenger. Both of the Mayers filed separate suits in the 21st Judicial District Court for the Parish of Livingston on February 20, 1986. In addition to Connell, the plaintiffs named as defendants State Farm Insurance Company, the insurer of Connell, and American Hardware Insurance Company, the uninsured carrier for the plaintiffs. American Hardware was served in both suits on February 24, 1986 and timely filed a petition for removal on March 20, 1986, since Connell was at the time of the accident and time of removal a resident of the state of Florida. These suits were listed on the court's docket as CA 86-162 (Albert J. Meyers, III's suit) and CA 86-163 (Brenda Mayers' suit). State Farm answered CA 86-162 on March 27, 1986.

On May 8, 1986 a summons was issued to Levi Connell in CA 86-163, but not CA 86-162. Connell received this summons on May 13, 1986. On July 30, 1986, the plaintiff filed the motion to remand in CA 86-163 and oral arguments were held in that case. At that hearing, the court ordered the two cases consolidated and instructed the plaintiff in CA 86-162 to file a motion to remand within twenty days if such a motion was desired. This motion to remand was timely filed. After oral arguments were held in CA 86-163, Brenda Meyers settled her case according to information set forth in the briefs. However, no formal motion to dismiss has been filed in the record.

The plaintiff asserts that not all of the defendants consented to the removal of this action to federal court as required by law. Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 272 (7th Cir.1982); Courtney v. Benedetto, 627 F.Supp. 523, 525 (M.D.La.1986). Plaintiff argues that Connell did not consent to the removal and the reasons why his consent was absent are not included in the petition for removal. Lewis v. Rego Co., 757 F.2d 66, 68 (3rd Cir.1985); Courtney, supra, 627 F.Supp. at 526.

A party who has been named a defendant but who has not been served with process need not join in the petition for removal. Lewis, supra, 757 F.2d at 68; Courtney, supra, 627 F.Supp. at 526. However,

a necessary corollary to 1446(a) which requires the petition for removal contain "a short and plain statement of the facts which entitle him or them to removal" is that the removal petition must set forth the reason why a defendant named in such action has not joined the petition for removal. Lewis v. Rego Co., 757 F.2d 66 (3rd Cir.1985); P.P. Farmers' Elevator Co. v. Farmers Elevator Mutual Ins. Co. & New Amsterdam Casualty Co., 395 F.2d 546 (7th Cir.1968) .

Courtney, supra at 526. Such a petition filed without a short statement of the facts surrounding the non-joinder of a defendant in the removal petition makes the petition defective. Courtney, supra.

In the case before the court, American Hardware stated the following in paragraph 7 of its removal petition: "All counsel of defendants, who are known to petitioner, have consented to the removal of this suit to Federal Court." No statement of facts is contained in the petition. This oversight causes the petition to be procedurally defective.

While it is true that a defendant should be allowed to amend his petition freely during the thirty day period in which a removal petition may be filed, once that time has expired, any amendment must be done pursuant to 28 U.S.C. § 1653. This court has ruled that an amendment to the petition for removal after the thirty day period should not be allowed if such amendment is to add a co-defendant to the petition. Such an amendment is a substantial one. Courtney, supra, 627 F.Supp. at 527.

Since this court finds that the petition for removal is defective and no amendment can be made at this time to add a co-defendant to the removal petition, the defendants have lost their right to remove this suit to this court unless plaintiff has waived the defect. It is irrelevant to this inquiry when service was made on Connell. American Hardware and State Farm lost their right to remove when the thirty day period for removal passed as to them and no procedurally proper petition was filed with this court. Had a proper petition been filed, Connell would have retained the right to remand pursuant to 28 U.S.C. § 1448. Connell cannot now join the petition of the other defendants since it is too late to amend the removal petition. Furthermore, Connell cannot file a new petition for removal since the other two defendants are precluded from joining because the thirty day removal period has run as to both these defendants,

Since no action that may be considered a waiver has been taken in Albert Meyers' suit, it must be remanded. The fact that plaintiff's wife caused a federal summons to issue in order to...