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noting that the few district courts that have found exceptional circumstances confronted situations of bad faith, forum manipulation, and lost filings
Summary of this case from Goldman v. Nationwide Mut. Ins. Co.Opinion
Civil Action No. 04-3349 Section "N" (4).
February 22, 2005
ORDER AND REASONS
Before the Court is a Motion to Remand filed by plaintiff Angela Casley. (Rec. Doc. No. 3). For the reasons that follow, plaintiff's motion is GRANTED.
I. BACKGROUND
On October 22, 2004, plaintiff Angela Casley ("Casley") filed her Petition for Damages in the Civil District Court for the Parish of Orleans, State of Louisiana, seeking to recover for injuries allegedly sustained as a result of an automobile collision. Named as defendants were Thomas Barnette ("Barnette"), the driver alleged to be at fault; his insurer State Farm Mutual Automobile Insurance Company ("State Farm"); and Casley's uninsured/underinsured motorist insurer United Services Automobile Association ("USAA"). For purposes of this motion, the Court finds that service was perfected on State Farm on November 5, 2004, and on Barnette on November 29, 2004.
On November 1, 2004, State Farm and Barnette were served with a copy of the state court Petition through the Louisiana Secretary of State, their designated statutory agent for service of process under Louisiana law. On November 3, 2004, the Louisiana Secretary of State forwarded the Petition to State Farm by certified mail, and on November 5, 2004, State Farm actually received the copy of the Petition. See Return Receipt No. 70022030000265539361 (Pl.'s Ex. "A"); U.S.P.S. Track and Confirm (Pl.'s Ex. "B"). Because the thirty-day period for removing a state court action begins to run when an insurer such as State Farm actually receives the petition, and not when the secretary of state is served, the Court will consider November 5, 2004, as the relevant service date. See Hibernia Community Dev. Corp., Inc. v. U.S.E. Community Servs. Group, Inc., 166 F.Supp.2d 511 (E.D.La. 2001) (Clement, J.).
With respect to Barnette, the parties have not provided the Court with any documentation regarding the service on him. Defendants, however, state in their Opposition Memorandum that Barnette did not receive a copy of the Petition and Citation until November 29, 2004. Thus, for purposes of this motion, the Court will consider Barnette as having been properly served on November 29, 2004.
On December 8, 2004, Barnette removed the action to this Court, alleging diversity jurisdiction. In the Notice of Removal, Barnette stated that defendant State Farm did not object to the removal. On December 27, 2004, plaintiff timely filed her Motion to Remand, contending that removal was untimely pursuant to 28 U.S.C. § 1446(b), and further that the notice of removal was defective as State Farm did not consent to removal. Defendants State Farm and Barnette respond that the action was timely removed because Barnette filed his notice of removal within nine days following his actual receipt of a copy of the Petition and Citation. Defendants further argue that the removal notice was not defective.
II. LAW AND ARGUMENT
The procedures governing removal are set forth at 28 U.S.C. § 1446. Section 1446(b) provides that "[t]he notice of removal of a civil action or proceeding shall be filed within thirty 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. . . ." 28 U.S.C. § 1446(b). In cases involving multiple defendants, courts have interpreted this provision to require all served defendants to join in the removal. Johnson v. Helmerich Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990). Further, the rule in the Fifth Circuit regarding such cases involving multiple defendants is that the thirty-day period established by section 1446(b) begins to run immediately after the first defendant is served. Getty Oil Div. of Texaco v. Insurance Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir. 1988) If the first defendant does not effect a timely removal, subsequently served defendants cannot remove. See id; see also Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986). The purpose of this rule is to promote unanimity among the defendants and is consistent with the principle that removal statutes are to be strictly construed. Getty, 841 F.2d at 1263, n. 13. When a party makes a timely motion to remand asserting a procedural defect, remand is required. See Thompson v. Louisville Ladder Corp., 835 F.Supp. 336, 339-40 (E.D.Tex. 1993).
This does not mean that every defendant must actually sign the notice of removal. However, there must be some timely filed written document from each served defendant, or its authorized representative, indicating that it has consented. Getty Oil Div. of Texaco v. Insurance Co. of N. Am., 841 F.2d 1254, 1262, n. 11 (5th Cir. 1988). This rule is subject to exceptions. For example, joinder is not required of defendants who have not been served at the time the notice of removal is filed. See Albonetti v. GAF Corp. Chem. Group, 520 F.Supp. 825, 827 (S.D. Tex. 1981) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 540-41, 59 S.Ct. 337, 350, 83 L.Ed. 334 (1939)).
The record in this case shows that Barnette filed his Notice of Removal thirty-three days after State Farm was served. Accordingly, under the rule expressed in Getty Oil, this case must be remanded because the first-served defendant did not remove within thirty days of having been served with process.
Defendants contend that the United States Supreme Court, in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 488 (1999), impliedly overruled cases like Getty Oil, supra, which have held that the first-served defendant is required to remove the case within thirty days of receipt of process. In Murphy Bros., the issue before the Court was "whether the named defendant must be officially summoned to appear in the action before the time to remove begins to run. Or, may the 30-day period start earlier, on the named defendant's receipt, before service of official process, of a `courtesy copy' of the filed complaint faxed by counsel for plaintiff?" Id. at 347, 119 S.Ct. 1322. The Supreme Court held that a defendant's time to remove "is triggered by simultaneous service of summons and complaint, or receipt of the complaint `through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Id. at 347-48, 119 S.Ct. 1325. Defendants contend that, in Murphy Bros., the Supreme Court abrogated the unanimity rule. Defendants, however, do not cite a Fifth Circuit case, and this Court has been unable to locate any, which has addressed the issue of Murphy Bros.' effect on cases like Getty Oil, supra. Moreover, in Murphy Bros., the Supreme Court did not address or even mention the first-served defendant rule. Thus, this Court declines to extend the reasoning of Murphy Bros. to overrule the well-established Fifth Circuit precedent of Getty Oil.
Indeed, one authority relied upon by defendants stated as follows in examining the Murphy Bros. decision: "It is likely that the [Supreme Court] may decide that the later served defendants may not have their removal right compromised before they are served. . . ." Defs.' Opp'n Mem., pp. 4-5 (quoting Moore's Federal Practice 3d at § 107.30[3][a] (emphasis added)). As stated above, this Court is unaware of any Supreme Court or Fifth Circuit case holding that later-served defendants may not have their removal right compromised before they are served. In fact, after Murphy Bros., courts within this Circuit have continued to cite with approval the rules set forth in Getty Oil and its progeny. See, e.g. Aucoin v. Gulf South Pipeline Co, L.P., 2004 WL 1196980 (E.D.La. May 26, 2004) (Barbier, J.); Turner v. Mine Safety Appliances Co., 2001 WL 456351 (E.D.La. April 27, 2001) (Vance, J.).
In Brown v. Demco, Inc., 792 F.2d 478, 482 (5th Cir. 1986), the Fifth Circuit determined that a subsequently served defendant may remove a state civil suit after the thirty days have expired in "exceptional circumstances." The Fifth Circuit, however, never specifically addressed what constitutes "exceptional circumstances," and district courts have seldom found exceptional circumstances to overcome Getty Oil. See, e.g., Prescott v. Memorial Med. Ctr.-Lexington, 2000 WL 532035, at *5 and n. 7 (E.D.Tex. Mar. 25, 2000) (citing cases). Those few district courts that have found exceptional circumstances confronted situations of bad faith, forum manipulation, and lost filings. See id. at *5 and n. 8 (citing cases). There is no evidence in the record before the Court that plaintiff attempted to manipulate the forum or delayed serving Barnette in bad faith. Accordingly, the Court finds no "exceptional circumstances" in this case.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that
(1) The Motion to Remand filed by plaintiff Angela Casley is GRANTED; and
(2) This civil action is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.