Raizada v. Auto Gallery Motorcars-Beverly Hills, LLC

Decision Date19 February 2013
Docket NumberCIVIL ACTION No. 12-2546-KHV
PartiesAMIT RAIZADA, Plaintiff, v. AUTO GALLERY MOTORCARS - BEVERLY HILLS, LLC and MCLAREN AUTOMOTIVE, INC., Defendants.
CourtU.S. District Court — District of Kansas
MEMORANDUM AND ORDER

In January of 2012, Amit Raizada bought a McLaren sports car for $269,255 cash from a dealer in Beverly Hills, California. Because the dealer misrepresented various attributes and accessories of the vehicle, Raizada sued Auto Gallery Motorcars - Beverly Hills, LLC ("Auto Gallery Motorcars") and McLaren Automotive, Inc. in the District Court of Johnson County, Kansas. Plaintiff alleged fraudulent misrepresentation (Count I), negligent misrepresentation (Count II), violation of the Kansas Consumer Protection Act, K.S.A. § 50-623 et seq. (Count III), violation of the California Business and Professions Code §§ 17200 et seq. and 17500 et seq. (Counts IV and V) and violation of the Song-Beverly Consumer Warranty Act, Cal. Civ. § 1790 et seq. (Count VI). McLaren removed the case to this Court, stating that then-defendant Auto Gallery Motorcars consented to removal. Defendants contend that Auto Gallery Motorcars was not the right party for plaintiff to sue, however, and after the removal, plaintiff amended his complaint to replace that defendant with Motorcars West, LLC d/b/a The Auto Gallery ("Motorcars West"). This matter is before the Court on Defendant McLaren Automotive Inc.'s Motion To Dismiss For Lack Of Personal Jurisdiction And Improper Service (Doc. #6) filed August 27, 2012, Plaintiff's Motion ToRemand For Failure To Comply With 28 U.S.C. § 1446(b)(2)(A) (Doc. #8) filed September 5, 2012, the Motion To Dismiss (Doc. #11-1) which Auto Gallery Motorcars filed September 17, 2012 and Defendant McLaren Automotive, Inc.'s Motion To Dismiss Amended Complaint For Lack Of Personal Jurisdiction And Improper Service (Doc. #22) filed October 5, 2012. Because the Court finds that the removal was procedurally defective, it sustains plaintiff's motion to remand, including plaintiff's request for attorney fees.

Legal Standards

A defendant may remove any state court civil action if a federal court has original jurisdiction over the claim. 28 U.S.C. § 1441(a). If diversity jurisdiction provides the basis for removal, the action may not be removed "if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." Id. § 1441(b)(2). In determining the propriety of removal the Court considers the complaint as it stands at the time of the removal. Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1488-89 (10th Cir. 1991) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939)). So the Court looks only at plaintiff's state-court petition to determine whether McLaren properly removed the action.

In addition to lack of subject matter jurisdiction, defects in the removal procedure are grounds for remand. See 28 U.S.C. § 1447(c); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711 (1996); Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D. Kan. 1996). Procedural defects include a deficient or untimely notice of removal, or any failure to comply with the procedural requirements of Section 1446(b). SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 580 (10th Cir. 1997); Sheet Metal Workers Int'l Ass'n, AFL-CIO v. Seay, 693 F.2d 1000, 1005 n.8 (10th Cir. 1982); Henderson, 920 F. Supp. at 1186. When the general removal statute - Section 1441(a) - isthe sole basis for removal, "all defendants who have been properly joined and served must join in or consent to the removal of the action" within the 30-day period defined in Section 1446(b)(1). Henderson, 920 F. Supp. at 1187; see 28 U.S.C. §§ 1446(b)(1), (b)(2)(A). This is known as the unanimity requirement; unless all defendants join a notice of removal filed under Section 1441(a), it is procedurally defective and fails. Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981); Henderson, 920 F. Supp. at 1186; see also 28 U.S.C. § 1447(c); SBKC Serv. Corp., 105 F.3d at 580; Sheet Metal Workers Int'l, 693 F.2d at 1005 n.8.

To "join" a notice of removal is to support it in writing. Henderson, 920 F. Supp. at 1186 (quoting Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994)). This does not mean that each defendant must sign the same notice of removal, but each defendant must "independently and unambiguously file notice of its consent and its intent to join in the removal within the thirty-day period." Wakefield v. Olcott, 983 F. Supp. 1018, 1021 (D. Kan. 1997); Henderson, 920 F. Supp. at 1186; see Cornwall, 654 F.2d at 686; Patel v. Moore, 968 F. Supp. 587, 590-91 (D. Kan. 1997), abrogated on other grounds by Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (abrogating "receipt rule"); see also 28 U.S.C. § 1446(b)(1) (30-day period). It is not enough that a notice of removal states that other defendants consent or do not object to removal. Wakefield, 983 F. Supp. at 1021 (quoting Henderson, 920 F. Supp. at 1187). One defendant's attempt to speak on behalf of another defendant will not suffice. Id. Requiring each defendant to unambiguously join or consent to removal on the record is not an onerous requirement, and without it, nothing on the record would bind the allegedly consenting defendant. Henderson, 920 F. Supp. at 1187 n.2.

Exceptions to the unanimity rule exist where "nominal, unknown, unserved or fraudulently joined defendants" do not join or consent to removal. McShares, Inc. v. Barry, 979 F. Supp. 1338,1342 (D. Kan. 1997); see also Dodson Aviation, Inc. v. HLMP Aviation Corp., No. 08-4102-EFM, 2009 WL 1036123, at *2-3 (D. Kan. Feb. 12, 2009) (denying motion to remand where nominal defendant failed to join or consent to removal). But the Court strictly construes removal statutes and resolves all doubts in favor of remand. See Ortiz v. Biscanin, 190 F. Supp.2d 1237, 1241 (D. Kan. 2002); Thurkill v. The Menninger Clinic, Inc., 72 F. Supp.2d 1232, 1234 (D. Kan. 1999) (citing Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995)). As the removing party, McLaren has the burden to show that it properly removed the action. McPhail v. Deere & Co., 529 F.3d 947, 953 (10th Cir. 2008); Wakefield, 983 F. Supp. at 1020; Henderson, 920 F. Supp. at 1186. The burden of showing fraudulent joinder is particularly heavy. See Montano v. Allstate Indem., 211 F.3d 1278 (Table), 2000 WL 525592, at *1 (10th Cir. 2000); Kan. State Univ. v. Prince, 673 F. Supp.2d 1287, 1294 (D. Kan. 2009).

Factual And Procedural Background

As noted, on July 24, 2012, plaintiff sued Auto Gallery Motorcars and McLaren in the District Court of Johnson County, Kansas. On July 31, 2012, plaintiff served both defendants through personal service on their registered agents. On August 20, 2012, alleging diversity jurisdiction, McLaren filed a notice of removal. The notice stated that Auto Gallery Motorcars consented to removal and would file a notice of consent. Notice Of Removal Of Civil Action (Doc. #1). After removal, McLaren filed a motion to dismiss. Defendant McLaren Automotive, Inc.'s Motion To Dismiss For Lack Of Personal Jurisdiction And Improper Service (Doc. #6).

On September 5, 2012, plaintiff filed a timely motion to remand. Plaintiff's Motion To Remand For Failure To Comply With 28 U.S.C. § 1446(b)(2)(A) (Doc. #8). Plaintiff does not dispute diversity jurisdiction but argues that removal was procedurally defective because AutoGallery Motorcars did not timely file written notice of intent to remove or consent to removal. On September 17, 2012, Auto Gallery Motorcars filed a motion to dismiss plaintiff's petition, stating that another entity - Motorcars West - had sold plaintiff the vehicle. Motion To Dismiss (Doc. #11-1). On September 26, 2012, Auto Gallery Motorcars filed a response in opposition to plaintiff's motion to remand. Named Defendant Auto Gallery Motorcars - Beverly Hills, LLC's Response In Opposition To Plaintiff's Motion For Remand (Doc. #17).

On September 28, 2012, plaintiff filed an amended complaint that substituted Motorcars West for Auto Gallery Motorcars. First Amended Petition (Doc. #18). McLaren filed a motion to dismiss it. Defendant McLaren Automotive, Inc.'s Motion To Dismiss Amended Complaint For Lack Of Personal Jurisdiction And Improper Service (Doc. #22). Because the propriety of removal is judged on the complaint as it stands at the time of the removal, Pfeiffer, 929 F.2d at 1488-89, in ruling on plaintiff's motion to remand the Court looks only at plaintiff's state-court petition, attached as an exhibit to McLaren's notice of removal. Plaintiff's petition alleged claims against Auto Gallery Motorcars and McLaren.

Analysis
I. Compliance With Notice Of Removal Procedures

Plaintiff does not dispute diversity jurisdiction under 28 U.S.C. § 1332, but contends that removal was improper because McLaren's co-defendant - Auto Gallery Motorcars - did not timely join or consent to removal. McLaren's removal appears to be based on the general removal statute, 28 U.S.C. § 1441(a), so "all defendants who have been properly joined and served must join in or consent to the removal of the action" within the 30-day period defined in Section 1446(b)(1). See 28 U.S.C. § 1446(b)(2)(A); Henderson, 920 F. Supp. at 1186-87. Failure to comply with thisrequirement renders the notice of removal procedurally defective and subject to remand. See 28 U.S.C. § 1447(c); Cornwall, 654 F.2d at 686; Henderson, 920 F. Supp. at 1186.

Plaintiff contends that at the time of removal it had properly joined and served both McLaren and Auto Gallery Motorcars. Although defendants' motions to dismiss argue that plaintiff did not properly serve them under K.S.A. § 60-304(e)(1), they do not dispute plaintiff's contention that he properly served them under K.S.A. §§ 60-304(e)(3) and 60-308. See Defendant McLaren Automotive, Inc.'s Reply Brief In Support Of McLaren's Motion To Dismiss For Lack Of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT