Sallee v. L.B. White Trucking, Inc.

• Decision Date: 08 September 2011
• Docket Number: Case No. 11-CV-212-TCK-PJC
• Parties: ERIC J. SALLEE, and CATHERINE SALLEE, individually and as husband and wife, Plaintiffs, v. L.B. WHITE TRUCKING, INC., ALLEN ERNEST KESSELER, and NATIONWIDE MUTUAL INSURANCE COMPANY, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

ERIC J. SALLEE, and CATHERINE SALLEE,

individually and as husband and wife, Plaintiffs,

v.L.B. WHITE TRUCKING, INC., ALLEN ERNEST KESSELER, andNATIONWIDE MUTUAL INSURANCE COMPANY, Defendants.

Case No. 11-CV-212-TCK-PJC

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

Dated: September 8, 2011

OPINION AND ORDER

Before the Court is Plaintiffs' Motion to Remand (Doc. 11).

I. Background

Plaintiffs brought this action in the District Court for Tulsa County, State of Oklahoma on February 16, 2011. In their Petition, Plaintiffs allege: (1) Plaintiff Eric Sallee and Defendant Allen Ernest Kesseler ("Kesseler") had a motor vehicle accident on December 17, 2010; (2) the accident was caused by Kesseler's negligence; (3) at the time of the collision, Kesseler was operating a semi-tractor and trailer; (4) at the time of the collision, Kessler was an employee, agent, representative or owner of Defendant L.B. White Trucking, Inc. ("L.B. White") and was acting in the scope of his employment; and (5) Defendant Nationwide Mutual Insurance Company ("Nationwide") insured L.B. White and Kesseler at the time of the collision. The Petition does not allege the residency, state of incorporation, or principal place of business of any party.

On March 11, 2011, Plaintiffs' counsel filed proof of service upon Kesseler and Nationwide in the state court action. On March 15, 2011, Plaintiffs' counsel filed proof of service upon J.B.White in the state court action. Such documents indicated that Defendants Kesseler and J.B. White were served at addresses in Wellington, Kansas. On March 18, 21, and 28, 2011, Defendants, by and through the same counsel, Jason Seay ("Seay"), filed Entries of Appearance and Reservations of Time to Plead in the state court action.

On April 8, 2011, Defendants filed a Notice of Removal, in which Defendants contended that removal is proper pursuant to 28 U.S.C. § 1332(a)(1). Defendants alleged that, although the Petition was filed on February 16, 2011, they were first able to determine that Plaintiffs were of diverse citizenship from all Defendants on March 11, 2011. Plaintiffs moved to remand, arguing (1) Defendants waived their right to remove by filing entries of appearance in the state court action ("waiver"); and (2) Defendants' removal was untimely because at least one Defendant, Nationwide, had actual knowledge of all Defendants' respective residencies and Plaintiffs' residencies as early as March 7, 2011, the date it was served with the Petition ("untimeliness").

II. Waiver

The general rule is that the "right of removal of a suit from state court to federal court is a statutory right," and any waiver of such right "must be clear and unequivocal." Regis Assocs. v. Rank Hotels (Mgmt.) Ltd., 894 F.2d 193, 195 (6th Cir. 1990); see also Carpenter v. Ill. Cent. Gulf R. Co., 524 F. Supp. 249, 251 (D. La. 1981) ("An intent to waive the right to remove to federal court and submit to the jurisdiction of state court must be clear and unequivocal and the waiving party's actions must be inconsistent with his right to remove."). Therefore, mere entries of appearance or answers are generally insufficient to constitute a clear and unequivocal waiver of the right to remove. See Mapp v. Deutsche Bank Nat'l Trust Co., 2009 WL 435069, at *2 (M.D. Ala. 2009) (rejecting argument that appearing at a preliminary injunction hearing and filing a Notice ofAppearance constituted a waiver of right to remove to federal court and that "the [defendant's] appearance at the preliminary injunction hearing was an attempt to maintain the status quo, not to litigate the merits of the case, a circumstance which voids the argument that the [defendant] consented to jurisdiction"). Carpenter, 524 F. Supp. 2d at 251 (finding that filing an answer in state court did not amount to waiver of right to remove to federal court where all the other removal requirements were met); Universal Steel & Metal Co. Ltd. v. Railco, Inc., 465 F. Supp. 7, 10 (D. Vt. 1978) (holding that right to remove was not lost because "[w]hatever steps the defendants took with respect to the action in state court manifestly were preliminary in nature" and that "the right of removal is not lost by action in the state court short of proceeding to an adjudication on the merits"). Here, the entries of appearance relied upon by Plaintiffs are wholly insufficient to constitute a clear and unequivocal waiver of the right to remove. They were filed at the outset of the litigation, are nothing more than preliminary filings, and even expressly reserve the right to all defenses available by law. Thus, Defendants did not waive their statutory right to remove.

III. Timeliness

Pursuant to 28 U.S.C. § 1446(b) ("Section 1446"), a notice of removal shall be filed "within thirty days after 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 thirty days after service of summons upon the defendant is such initial pleading has been filed in court and is not required to be served on the defendant." Section 1446 further provides that "[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."Id. Under Tenth Circuit law, "the key to determining that date from which the clock begins to run is when the defendant is able to intelligently ascertain removability" from either the initial pleading or another paper. See Akin v. Ashland Chemical Co., 156 F.3d 1030, 1036 (10th Cir. 1998). A defendant does not have any "duty to investigate and determine removability where the initial pleading indicates that the right to remove may exist." Id. Rather, the Tenth Circuit "requires clear and unequivocal notice from the pleading itself, or a subsequent other paper such as an answer to an interrogatory." Id.

Plaintiffs argue that the clock began to run on February 25, 2011, the date of service upon the first Defendant, Kesseler. Although the Petition did not...