Nixon v. Wheatley

• Decision Date: 24 March 2005
• Docket Number: No. 1:05-CV-051.,1:05-CV-051.
• Parties: Kevin NIXON and Brandon Ancelet Plaintiffs, v. Buryl WHEATLEY and P D George Company, Defendants.
• Court: U.S. District Court — Eastern District of Texas

368 F.Supp.2d 635

Kevin NIXON and Brandon Ancelet Plaintiffs, v. Buryl WHEATLEY and P D George Company, Defendants.

No. 1:05-CV-051.

United States District Court, E.D. Texas, Beaumont Division.

March 24, 2005.

COPYRIGHT MATERIAL OMITTED

Craig J. Schexnaider, Beaumont, TX, for Plaintiffs.

Michael Murphy Gallagher and Shannon, Ramirez of Hays, McConn Rice & Pickering, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

CRONE, District Judge.

Pending before the court is Plaintiffs Kevin Nixon ("Nixon") and Brandon Ancelet's ("Ancelet") Motion to Remand (# 5). Plaintiffs seek remand to state court of this personal injury action against Defendants Buryl Wheatley ("Wheatley") and P D George Company ("George"), asserting that Defendants did not obtain written consent for removal from both Wheatley and George, Defendants failed to file a copy of the notice of removal with the state court in a timely manner, and Defendants waived their right to remove. Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that remand is not warranted.

I. Background

On December 30, 2004, Plaintiffs filed suit in the 260th Judicial District Court of Orange County, Texas, against Defendants, alleging that on January 3, 2003, they were injured when the vehicle in which they were riding collided with a vehicle driven by Wheatley, who was allegedly operating a vehicle owned by George within the course and scope of his agency and/or employment with George. Plaintiffs allege that Wheatley was negligent in his operation of the vehicle and was negligent per se in violation of the Texas Uniform Traffic Act. See TEX. TRANSP. CODE ANN. § 545.401.

On January 26, 2005, Defendants, who are represented by the same attorney, timely removed the case to federal court pursuant to 28 U.S.C. § 1441(a) on the basis of diversity of citizenship, alleging that complete diversity exists between the parties and that the amount in controversy exceeds $75,000.00, exclusive of interest and costs. See 28 U.S.C. § 1332. Defendants filed a copy of their notice of removal with the Orange County District Clerk's Office on February 17, 2005.

Plaintiffs filed their motion to remand on February 16, 2005, contending that the removal was procedurally defective on the grounds that both Wheatley and George did not sign the notice of removal or a separate form agreeing to the notice of removal, a copy of the notice of removal was not timely filed with the Orange County District Clerk's Office, and Defendants waived their right to remove by serving discovery requests upon Plaintiffs.

II. Analysis

A. Federal Jurisdiction in Removed Actions

"Federal courts are courts of limited jurisdiction." Peoples Nat'l Bank v. Office of Comptroller of the Currency of United States, 362 F.3d 333, 336 (5th Cir.2004); accord Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993, 122 S.Ct. 459, 151 L.Ed.2d 377 (2001) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). Federal courts have subject matter jurisdiction and are authorized to entertain causes of action only where a question of federal law is involved or where there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00. See 28 U.S.C. §§ 1331, 1332; Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, ___, 124 S.Ct. 1920, 1923 n. 1, 158 L.Ed.2d 866 (2004); Howery, 243 F.3d at 914-15; Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir.2000); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1330 (5th Cir.1995). In a removed action, a 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. See 28 U.S.C. § 1447(c). The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002); Howery, 243 F.3d at 919; De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.), cert. denied, 516 U.S. 865, 116 S.Ct. 180, 133 L.Ed.2d 119 (1995).

The existence of federal subject matter jurisdiction is determined at the time of removal from state court. See Bissonnet Invs. LLC v. Quinlan, 320 F.3d 520, 525 (5th Cir.2003) (citing Arnold v. Garlock, 278 F.3d 426, 434 (5th Cir.2001)). In order to determine whether jurisdiction is present, the claims set forth in the state court petition are considered as of the time of removal. See Manguno, 276 F.3d at 723; Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.2000); Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 264 (5th Cir.1995). Any ambiguities are construed against removal because the removal statute is strictly construed in favor of remand. See Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir.2002); Manguno, 276 F.3d at 723; Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.), cert. denied, 530 U.S. 1229, 120 S.Ct. 2658, 147 L.Ed.2d 273 (2000).

1. Consent to Removal

The procedure for effectuating removal is set forth in 28 U.S.C. § 1446. See Johnson v. Heublein, Inc., 227 F.3d 236, 240 (5th Cir.2000). Section 1446(a) provides:

A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

28 U.S.C. § 1446(a). While not stated explicitly in the statute, removal generally requires the joinder or consent of all the named and served defendants. See Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir.2002); Jernigan v. Ashland Oil Co., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868, 114 S.Ct. 192, 126 L.Ed.2d 150 (1993); Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir.1992); Farias v. Bexar County Bd. of Trustees for Mental Health Mental Retardation Servs., 925 F.2d 866, 871 (5th Cir.), cert. denied, 502 U.S. 866, 112 S.Ct. 193, 116 L.Ed.2d 153 (1991); Getty Oil Corp. v. Insurance Co. of N. Am., 841 F.2d 1254, 1261 (5th Cir.1988); McCrary v. Kansas City S. R.R., 121 F.Supp.2d 566, 570 (E.D.Tex.2000). The courts have read the governing statute to mean that, "if there is only one defendant then that defendant may remove the case; however, if there is more than one defendant, then the defendants must act collectively to remove the case." Doe, 969 F.2d at 167. Hence, although "[t]here is no express statutory requirement for joinder or consent by codefendants ... the case law firmly establishes this requirement, which is known as the `rule of unanimity.'" Spillers v. Tillman, 959 F.Supp. 364, 368 (S.D.Miss.1997) (quoting Martin Oil Co. v. Philadelphia Life Ins. Co., 827 F.Supp. 1236, 1237 (N.D.W.Va.1993)); see Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S. 245, 247-48, 20 S.Ct. 854, 44 L.Ed. 1055 (1900).

The United States Court of Appeals for the Fifth Circuit has held that there must be a timely filed, written indication from each served defendant, or from some person purporting to act formally on his behalf and with the authority to do so, that he has actually consented to removal. See Gillis, 294 F.3d at 759; Getty Oil Corp., 841 F.2d at 1262 n. 11; Spillers, 959 F.Supp. at 369. "Although it is not necessary that all defendants sign the notice of removal, each defendant who has been served must at least communicate its consent to the court no later than thirty days from the day on which the first defendant was served." Id. at 368. Under the general rule, the failure to include all defendants properly joined and served in the state action renders the notice of removal defective. See Farias, 925 F.2d at 871; Acme Brick Co. v. Agrupacion Exportadora de Maquinaria Ceramica, 855 F.Supp. 163, 165 (N.D.Tex.1994). Nonetheless, such failure is a waivable, non-jurisdictional defect. See Johnson, 892 F.2d at 423; Robertson v. Ball, 534 F.2d 63, 64-65 (5th Cir.1976); Moody v. Commercial Ins. Co., 753 F.Supp. 198, 200 (N.D.Tex.1990); Intercoastal Refining Co. v. Jalil, 487 F.Supp. 606, 608 (S.D.Tex.1980).

In the case at bar, Wheatley and George are represented by the same counsel. In the notice of removal, Defendants state that "both defendants file and join in this Notice of Removal." Plaintiffs assert that Defendants' notice was defective because neither Wheatley nor George signed the notice of removal "or a separate form agreeing to the notice of removal." Defendants, however, need not have personally signed the notice of removal. See Getty Oil Corp., 841 F.2d at 1262 n. 11. It is sufficient that consent to removal come "from some person purporting to act formally on [the defendant's] behalf and with the authority to do so." Id.; accord Gillis, 294 F.3d at 759. Here, Defendants' counsel had the authority to remove on their behalf and did so. See id. As a consequence, the proper parties joined in the notice of removal, and remand for lack of consent is unfounded.

2. Filing Notice of Removal in State Court

Plaintiffs further allege that Defendants' removal was defective because they did not timely file a copy of the notice of removal with the state court. Section 1446(d) provides:

Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

28 U.S.C. § 1446(d). Here, Defendants filed their notice of removal in federal court on January 26, 2005, and on ...