Opinion
CIVIL ACTION NO. 07-558, SECTION "R"(1).
March 27, 2007
ORDER
Before the Court is plaintiff Eleanor Graphia's motion to remand this matter to state court. Plaintiff contends that removal of this action was untimely because one of the defendants, Meritplan, did not consent to removal until more than 30 days after the case became removable. However, plaintiff failed to effect proper service of Meritplan under Louisiana law, as she served Meritplan with a copy of the supplemental and amending petition, but neglected to serve Meritplan with a copy of the original petition. See, e.g., Dickinson v. Nat'l Soc'y of Health, 589 So. 2d 632, 633 (La.Ct.App. 1991) (holding that service of supplemental and amending petition without original petition is "defective service of process"); Gant v. McGee, 411 So. 2d 1191, 1192 (La.Ct.App. 1982) (same); Scullin v. Prudential Ins. Co., 421 So. 2d 470, 472 (La.App.Ct. 1982) (same). Plaintiff's failure to serve Meritplan with a copy of the original petition is fatal to her motion, as federal courts look to the law of the state under which service was made to determine the validity of service of process made before removal. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1052 (5th Cir. 1972); cf. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999) (setting forth the various state provisions for service of the summons and/or complaint that trigger the 30-day removal clock under 28 U.S.C. § 1446(b)). Because Meritplan was not a properly served defendant at the time of removal, its consent to removal of this action was unnecessary. See Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir. 1988) (requiring that all properly served defendants must join in a notice of removal under Section 1446(b)). The Court therefore DENIES plaintiff's motion to remand.