Pelagidis v. Future Care, Inc., CIVIL ACTION NO. H-17-3798

Decision Date15 May 2018
Docket NumberCIVIL ACTION NO. H-17-3798
PartiesIOANNIS NIKOLAOS PELAGIDIS, Plaintiff, v. FUTURE CARE, INC., MARINE MANAGEMENT SERVICES M.C., LONDON P&I CLUB, VALERO MARKETING AND SUPPLY COMPANY, AND VALERO ENERGY CORPORATION, Defendants.
CourtU.S. District Court — Southern District of Texas
MEMORANDUM AND OPINION GRANTING THE PLAINTIFF'S MOTION FOR REMAND

Ioannis Pelagidis was injured by an exploding air valve while working as an engineer aboard a tanker ship in December 2016. He sued Future Care, Inc., Marine Management Services M.C., London P&I Club, Valero Marketing and Supply Company, and Valero Energy Corporation in Texas state court on October 5, 2017. London P&I Club filed a notice of removal, and Pelagidis moved to remand. (Docket Entry No. 6). The court heard argument from counsel and requested supplemental briefing on three issues relating to remand, and the parties complied. (Docket Entry Nos. 25, 26-31). Based on a careful review of the motions, the responses, and the supplemental briefing; the arguments of counsel; the record; and the applicable law, the court grants the motion for remand. The reasons are set out below.

I. Background

Pelagidis alleges that in December 2016, while he was working for Marine Management as an engineer aboard the tanker ship M/T United Ambassador, he was injured by an exploding air valve. Marine Management had contracted with Valero Energy Corporation to store "Vacuum Gas Oil Max 2," a petroleum product, aboard the M/T United Ambassador while waiting for instructions from Valero to deliver the product to a refinery for processing. Marine Management expected to store the product for 10 to 45 days before delivery. The pleadings do not make clear the role of Future Care or London Club. On December 12, 2016, the M/T United Ambassador anchored at the Sabine Pass Anchorage. The accident occurred on December 21.

Pelagidis sued under the Jones Act, 46 U.S.C. § 883, and general maritime law. Although it is unclear from the state-court petition, the briefs and arguments clarify that Pelagidis asserts a Jones Act claim only against Marine Management. He asserts general maritime-law claims for negligence and gross negligence against all the defendants.

London Club removed on December 18, 2017, and Pelagidis moved to remand on January 17, 2018. (Docket Entry Nos. 1, 6). Pelagidis asserted two grounds for remand: (1) the removal notice was untimely and does not meet the statutory requirements; and (2) the case was not removable. (Id.). London Club and Future Care jointly responded, and Marine Management filed a separate response. (Docket Entry Nos. 16, 18). London Club, Marine Management, and Pelagidis all filed supplemental briefing on the issues the court identified at the February 27, 2018 oral argument. (Docket Entry Nos. 26-31).

II. Analysis
A. Timeliness

Pelagidis first argues that London Club filed its notice of removal after the 30-day removal period ended. Pelagidis sued on October 5 and London Club removed on December 18. The issue is when the 30-day removal period began.

Pelagidis admits that he had not served London Club when it filed its notice of removal. Pelagidis argues that because London Club and Future Care were represented by the same attorney, London Club had constructive notice of the lawsuit when Future Care was served on October 13. Pelagidis argues that the removal clock started on that date, making the removal untimely. London Club argues that Pelagidis's argument is foreclosed by Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), which holds that the removal clock begins only on formal service of process. London Club is correct.

Title 28 U.S.C. § 1446(b)(1) provides:

The notice of removal of a civil action or proceeding shall be filed within 30 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 30 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.

Pelagidis focuses on the language requiring the notice of removal to be filed within 30 days "after the receipt by the defendant, through service or otherwise," of the pleadings. According to Pelagidis, London Club knew about and received the petition through counsel when Future Care was served in October 2017. Removal was therefore untimely, Pelagidis argues, and the court must remand.

This argument is not persuasive. The federal removal and jurisdiction statutes "clearly provide that a defendant's right to removal runs from the date on which it is formally served with process." Thompson v. Deutsche Bank Nat'l Tr. Co., 775 F.3d 298, 303 (5th Cir. 2014) (citing Murphy Bros., 526 U.S. at 347-48). "Put another way, 'one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend.'" Id. (quotingMurphy Bros., 526 U.S. at 350). "A defendant has no obligation to appear in court or defend an action before it is formally served with process directing it to appear before that forum. Only after a party is subject to the powers of a court, must it seek to effect removal." Id. "To the point, the defendant in Murphy Brothers was aware of the pending litigation when it received a courtesy copy of the complaint from the plaintiff, but the defendant was not required to remove the action until it was formally served." Id. (citing Murphy Bros., 526 U.S. at 347-48). Pelagidis concedes that London Club was not formally served before the December 18 hearing.

Without formal service, London Club had no duty to remove the case, even if it was aware of the lawsuit through counsel shared with another, formally served defendant. As London Club notes, Murphy Brothers explained:

[T]he so-called 'receipt rule'—starting the time to remove on receipt of a copy of the complaint, however informally, despite the absence of any formal service—could, as the District Court recognized, operate with notable unfairness to individuals and entities in foreign nations. Because facsimile machines transmit instantaneously, but formal service abroad may take much longer than 30 days, plaintiffs 'would be able to dodge the requirements of international treaties and trap foreign opponents into keeping their suits in state courts.'

526 U.S. at 356.

The removal period did not begin to run until London Club was formally served. Failure to timely remove is not a basis on which to remand.

B. Failure to Obtain the Consent of All Defendants

Pelagidis sued Future Care, Marine Management, London Club, Valero Marketing and Supply, and Valero Energy Corporation. Pelagidis argues that remand is required because the Notice of Removal fails to establish that all of the defendants had consented to the removal.

Title 28 U.S.C. § 1446 requires that all defendants consent to removal. "This 'rule of unanimity' requires that there be 'some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have the authority to do so, that it has actually consented to such action'; each defendant does not need to sign the notice of removal to effect removal." Moreno Energy, Inc. v. Marathon Oil Co., 884 F. Supp. 2d 577, 582 (S.D. Tex. 2012) (quoting Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir.1988)). "There need only be some timely filed written indication from each defendant or from someone purporting to represent that defendant formally." Id. (citing Getty Oil, 841 F.2d at 1262 n. 11). Exceptions to the rule that all defendants must join in the removal petitions to effect removal exist when: (1) the defendant was not yet served with process when the removal petition was filed; (2) a defendant is merely a nominal, unnecessary or formal party-defendant; and (3) the removed claim is separate and independent under 28 U.S.C. § 1441(c). Id. at 582-83.

In the notice of removal, London Club's attorney stated, "I hereby certify that I have contacted counsel for all Defendants who have been properly joined and served by Plaintiff herein and they consent to this removal on behalf of their clients, including consent to a jury trial as requested by Plaintiff." (Docket Entry No. 1 at 6). London Club and Future Care include emails with their response to the motion to remand stating that Valero's attorney had consented to removal, as London Club represented. (Docket Entry No. 16-7). London Club argues that consent was not required from Marine Management because it had not been served at the time of removal, nor from either Valero defendant, because both were fraudulently joined.

Pelagidis argues that "the Fifth Circuit has cautioned against using non-specific certifications from a co-counsel, such is attached to the Notice of Removal in this case." (Docket Entry No. 6 at6) (citing Getty Oil, 841 F.2d at 1262 n.11). London Club argues that Getty Oil was decided before the 2011 amendments to 28 U.S.C. § 1446, and that neither the prior or amended statute specifies the form for the consent to removal. London Club relies on Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182 (8th Cir. 2015), for the proposition that there is no set form for written consent to removal:

It is true that we have specifically advised non-removing defendants who wish to consent to removal to 'either sign the notice of removal or file a timely and unequivocal consent.' Nevertheless, we have recognized that the written indication of consent can come in various forms, and we have been 'disinclined to apply the unanimity requirement in a hypertechnical and unrealistic manner.' So also here, we are once again disinclined to adopt a hard-line
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