Rodriguez v. National Railroad Passenger Corp.

• Decision Date: 11 April 2007
• Docket Number: No. EP-07-CA-013-FM.,EP-07-CA-013-FM.
• Citation: 483 F.Supp.2d 553
• Parties: Carmen L. RODRIGUEZ and Ann Marie Guerra, individually and on behalf of the Estate of Samuel Guerra, deceased, Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORPORATION, aka Amtrak, Union Pacific Railroad Company, and Charles Torres, Defendants.
• Court: U.S. District Court — Western District of Texas

483 F.Supp.2d 553

Carmen L. RODRIGUEZ and Ann Marie Guerra, individually and on behalf of the Estate of Samuel Guerra, deceased, Plaintiffs, v. NATIONAL RAILROAD PASSENGER CORPORATION, aka Amtrak, Union Pacific Railroad Company, and Charles Torres, Defendants.

No. EP-07-CA-013-FM.

United States District Court, W.D. Texas, El Paso Division.

April 11, 2007.

James F. Scherr, El Paso, TX, for Plaintiffs.

Robert B. Burns, Jr., Burns Anderson Jury & Brenner, L.L.P., Austin, TX, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO REMAND

FRANK MONTALVO, United States District Judge.

Before the Court is Plaintiff Carmen L. Rodriguez's and Plaintiff Ann Marie Guerra's (collectively, "Plaintiffs") "Motion to Remand" ("Motion") [Rec. No. 5], filed through counsel in the above-captioned cause on February 7, 2007. Therein, Plaintiffs argue that Defendant National Railroad Passenger Corporation's ("Amtrack") January 10, 2007 removal of this action to federal district court was improper. Plaintiffs therefore move the Court to remand this matter to the state court in which Plaintiffs originally filed their lawsuit and award them reasonable costs and attorneys' fees, pursuant to 28 U.S.C. § 1447(c). Amtrack filed a "Response to Plaintiffs' Motion to Remand" ("Response") [Rec. No. 8] on February 20, 2007, asserting that its removal of Plaintiffs' lawsuit was proper. Plaintiffs' "Reply to Defendant Amtrack's Response to Plaintiffs' Motion to Remand" ("Reply") [Rec. No. 9] followed on March 5, 2007. For the reasons it discusses below, the Court concludes it should grant Plaintiffs' Motion to the extent of remanding this cause to state court, but will deny their request for reasonable attorneys fees and costs.

I. BACKGROUND

A. Procedural History

This lawsuit arises from Samuel Guerra's death at a railroad crossing located in El Paso, Texas. Plaintiffs allege an Amtrack train operated by Defendant Charles Torres ("Torres") struck Guerra's vehicle while Guerra was attempting to traverse tracks maintained by Defendant Union Pacific Railroad Company ("Union Pacific"). Plaintiffs filed their Original Petition against Defendants in County Court at Law Number Three, El Paso County, Texas, on November 13, 2006, alleging various state law negligence causes of action.

Plaintiffs served Union Pacific with their state court suit and citation no later than December 4, 2006.¹ Plaintiffs served both Amtrack and Torres on December 20, 2006. By and through its attorney of record, Robert B. Burns, Jr. ("Burns"), Union Pacific appeared in the state court suit the same day, December 20, 2006, filing its Original Answer. Amtrack, also represented by Burns, appeared and filed its Original Answer on January 3, 2007. Torres, similarly represented by Burns, appeared and filed his Original Answer on January 5, 2007.

B. Amtrack's Notice of Removal

Amtrack filed its Notice of Removal ("Notice") in federal district court on January 10, 2007. Its Notice did not include written consent to the removal from Union Pacific or Torres. Amtrack also did not allege in its Notice that Union Pacific and Torres consented to removal.

Amtrack premised its removal on the theory that this Court possesses original jurisdiction over Plaintiffs' claims against Amtrack and supplemental jurisdiction over Plaintiffs' claims against Union Pacific and Torres. The Court examines Amtrack's argument more closely, as the basis for its removal is relevant to the Parties' arguments supporting and opposing Plaintiffs' Motion.

Amtrack expressly based its removal on 28 U.S.C § 1441(a), 28 U.S.C. § 1331, 28 U.S.C. § 1349, and 28 U.S.C. § 1367(a). Section 1441(a) permits a defendant to remove a civil action filed in state court to federal district court if the federal district court would have original jurisdiction over the matter.² Section 1331 vests federal district courts with original jurisdiction over civil actions involving a "federal question."³ A federal question exists in "all civil actions arising under the Constitution, laws, or treaties of the United States."⁴ Section 1349 states that "[t]he district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock."⁵ In any civil action in which a federal district court possesses original jurisdiction, section 1367(a) gives district courts supplemental jurisdiction over "all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."⁶

C. The Parties' Arguments Regarding Remand

The Court summarizes the Parties' arguments below.

1. Plaintiffs' Arguments

Plaintiffs state that several federal district courts have interpreted 28 U.S.C. § 1349 to grant them federal question jurisdiction, and therefore original jurisdiction, over actions involving Amtrack pursuant to 28 U.S.C. § 1331. Therefore, these district courts have also determined that Amtrack may remove an action originally filed against it in state court pursuant to 28 U.S.C. § 1441(a), provided the removal is timely and otherwise procedurally proper. Here, Plaintiffs aver that Amtrack's removal of this action was both untimely and procedurally improper because Amtrack did not obtain its co-defendants' written consent to removal. The Court now examines the specifics of Plaintiffs' arguments.

First, Plaintiffs contend Amtrack's Notice of Removal was untimely under the Fifth Circuit's "first served defendant" rule. Citing Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262-63 (5th Cir.1988), and Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986), Plaintiffs assert that, in a case with multiple defendants, the Fifth Circuit requires a defendant to file a notice of removal within thirty days of the day on which the first defendant received service. Here, it is undisputed that Union Pacific was the first named defendant in this action to receive service, and that service occurred no later than December 4, 2006. Under the first served defendant rule, Plaintiffs aver Amtrack had until January 3, 2007 to file a timely notice of removal. Because Amtrack did not file its Notice of Removal until January 10, 2007, Plaintiffs argue the Notice was untimely and the Court must therefore remand this action to state court.

Second, Plaintiffs assert the Court must remand this action because Amtrack failed to obtain Union Pacific's and Torres's written consent to removal within thirty days of the date Plaintiffs served Union Pacific. Plaintiffs argue that Getty Oil requires all served defendants to join in a petition for removal no later than thirty days from the date on which the first defendant was served. Because Amtrack did not obtain the required written consent within thirty days of the date Plaintiffs served Union Pacific, Plaintiffs contend that the rule of unanimity articulated in Getty Oil requires the Court to remand their lawsuit to state court.

Third, the Court understands Plaintiffs to argue that because Amtrack's removal was untimely, unilateral, and therefore procedurally defective, the Court lacks subject matter jurisdiction over their action. They therefore urge the Court to remand this matter to County Court at Law Number Three and ask the Court to award them reasonable attorneys fees they incurred as a result of Amtrack's allegedly improvident removal, pursuant to 28 U.S.C. § 1447(c).

2. Amtrack's Response

Amtrack argues that it had two separate bases for removal. First, Amtrack asserts it could remove the case through the interplay of 28 U.S.C. §§ 1331 and § 1349, which together provide federal district courts with federal question jurisdiction over Amtrack. Second, Amtrack contends that 28 U.S.C. § 1349 creates an independent statutory right of removal and therefore Getty Oil's rules do not apply here.⁷ According to Amtrack, when a defendant removes a case from state court pursuant to an independent statutory right of removal, the defendant may do so without its co-defendants' consent and within thirty days of the date the removing defendant receives service. Further, Amtrack argues that other circuits have criticized Getty Oil and the first served defendant rule because it allows plaintiffs to thwart removal by manipulating service on defendants. In any event, because it based its removal on an independent statutory basis, Amtrack contends its Notice of Removal was timely under 28 U.S.C. § 1441(a), and the fact that Union Pacific and Torres did not join in the removal is irrelevant.

3. Plaintiffs' Reply

Plaintiffs challenge Amtrack's assertion that 28 U.S.C. § 1349 creates an independent statutory right of removal. Plaintiffs contrast § 1349's language with that of 28 U.S.C. § 1442, a statute Plaintiffs aver clearly creates an independent statutory right of removal. Plaintiffs contend that the difference in the two statutes' language makes it clear that § 1349 does not create an independent right of removal. Therefore, Plaintiffs argue the Court should reject Amtrack's assertion that § 1349 creates an independent right of removal. Further, to the extent courts have criticized Getty Oil, Plaintiffs note that the specific criticism leveled at Getty Oil's rule does not apply in the present circumstances. Courts which have criticized Getty Oil have based their criticism on the fact that the first served defendant rule allows a plaintiff to manipulate service so a later served defendant has no opportunity to remove a case to federal court before the thirty day window expires. Here, Plaintiff notes that Amtrack's counsel also represents Union Pacific and Torres, and thus was aware of Plaintiffs' lawsuit in plenty of time to file a timely Notice of Removal and to obtain...