Opinion
Civil Action No: 02-813, Section: "J"(5)
December 2, 2002
ORDER AND REASONS
Before the Court is Plaintiff's Motion to Remand (Rec. Doc. 9) which was set for hearing on November 20, 2002. Plaintiff has also filed a supplemental memorandum (Rec. Doc. 15) in support of his motion. Defendants, MG Tank Lines, Inc. and Hanover Insurance Company, have filed both a memorandum and a supplemental memorandum (Rec. Docs. 11 16) in opposition to Plaintiff's motion. After considering the memoranda and evidence submitted by counsel, the record, and the applicable law, the Court finds that Plaintiff's motion should be DENIED.
BACKGROUND
The case at issue arises out of a traffic accident which occurred on or about March 19, 2001 in New Orleans, Louisiana. Plaintiff claims that he was stopped in traffic on the Chef Menteur exit of westbound I-10 when the tractor-trailer truck operated by one of the defendants, Durane Ard, backed into him, causing a collision and damages. Plaintiff contends that Ard was employed by MG Tank Lines, Inc. ("MG Tank Lines"), and was driving the truck within the course and scope of his employment.On February 7, 2002, Plaintiff filed suit in Civil District Court for the Parish of Orleans, State of Louisiana, naming as defendants Ard, MG Tank Lines, and Hanover Insurance Company ("Hanover"). MG Tank Lines was served with process on February 11, 2002 and Hanover was served on February 15, 2002. To this date, service has never been executed on Ard. MG Tank Lines and Hanover ("Defendants") removed the case to this Court on March 19, 2002.
Plaintiff then filed this remand motion on September 9, 2002. In his motion and memoranda, Plaintiff asserts the following as reasons why this case should be remanded to state court:
(1) The Court lacks subject matter jurisdiction under 28 U.S.C. § 1441 and § 1332 because Defendants have failed to establish that complete diversity exists;
(2) To remove a case to federal court, all named defendants must acquiesce in the decision. Only two of the three named defendants have acquiesced in the removal of the instant case;
(3) Defendants filed their Notice of Removal after the thirty-day deadline proscribed in 28 U.S.C. § 1446 (b); and
(4) As a matter of equity, the case should be remanded because Defendants took over six months to answer Plaintiff's petition.
Defendants respond by arguing that complete diversity exists. Plaintiff is a Louisiana citizen. Both sides agree that MG Tank Lines is an Alabama citizen and Hanover is a citizen of Delaware and Massachusetts. The parties disagree as to the citizenship of Ard. Defendants contend that they have sufficiently established Ard's citizenship as Alabama. Plaintiff argues that it is possible that Ard is a Louisiana citizen because he was found driving in the state at the time of the accident. Plaintiff claims that Defendants have failed to completely prove away this possibility. Thus, under Plaintiff's interpretation of § 1441(a) and § 1332(a)(1), Defendants have not met their burden of showing that complete diversity exists.
MG Tank Lines is an Alabama corporation and has its principal place of business there. See 28 U.S.C. § 1332 (c)(1). Hanover is a Delaware corporation and has its principal place of business in Massachusetts. See Id.
On October 9, 2002, the Court originally presided over oral arguments on this motion. At that time, it became clear that the question of Ard's citizenship was determinative as to the disposition of Plaintiff's motion. The Court continued the hearing until November 20, 2002, so the parties could procure additional records and information that would clarify Ard's citizenship. Defendants were able to obtain copies of Ard's application for employment with MG Tank Lines. Additionally, Defendants obtained a letter of recommendation, dated May 24, 2001, and a traffic citation, also dated May 24, 2001. Plaintiff submitted no evidence in support of his assertion that Ard could be a Louisiana citizen. At this time, Ard's whereabouts remain unknown.
DISCUSSION
I. Does Complete Diversity Exist Between the Parties?
A motion to remand a case based on lack of subject matter jurisdiction may be filed at anytime before final judgment. 28 U.S.C. § 1447 (c). Under 28 U.S.C. § 1441 (a), a state court action may be removed if the federal court would have original jurisdiction over the matter. A federal district court has original jurisdiction over a civil action where the matter in controversy exceeds $75,000.00 and is between citizens of different states. 28 U.S.C. § 1332 (a)(1). Complete diversity of citizenship must be present under § 1332(a)(1). Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992). Federal, not state, law dictates whether complete diversity of citizenship is present. Gonzalez v. Government Employees Ins. Group, 2000 WL 235236, at *2 (E.D. La. 2000).
Neither side contends that the amount in controversy does not exceed $75,000.00.
In Coury v. Prot, 85 F.3d 244 (5th Cir. 1996), the Fifth Circuit stated the current law regarding proof of citizenship for diversity purposes. Where a case has been removed from state court, diversity of citizenship must exist at the time the suit was filed in state court and when the suit is removed. Id. at 249. If diversity is established at that time, it will not be destroyed by a subsequent change in the citizenship of one of the parties. Id.
To be a citizen of a state under § 1332, a natural person must be (1) a citizen of the United States and (2) a domiciliary of that state.Id. at 248. A person becomes domiciled in a state by (1) his physical presence in the state and (2) exhibiting an intention to remain there indefinitely. Id. at 250. Once a domicile is established, it persists until a new one is acquired or it is clearly abandoned. Id. A presumption exists in favor of the continuing domicile. Id. A party seeking to show a change in domicile must come forward with enough evidence on the issue to withstand a directed verdict. Id. However, this presumption does not cancel out the ultimate burden that rests with the party seeking to invoke federal jurisdiction. Id. In making its determination, a district court "must address a variety of factors," and "[n]o single factor is determinative." Id. at 251. "The court should look to all evidence shedding light on the litigant's intention to establish domicile." Id.
On his February 1, 2001 application for employment with MG Tank Lines, Ard stated that he had resided in Alabama during the prior three years. He listed a Mobile, Alabama address as his current residency. The underlying accident occurred about one and a half months later on March 19, 2001. At the time of the accident, Ard possessed an Alabama driver's license. He was working for a company based in Alabama. Furthermore, the May 24, 2001 letter from MG Tank Lines to Dependable Source Corporation, an Alabama corporation, shows that Ard sought to continue his residency in Alabama after he ceased working for MG Tank Lines. The May 24, 2001 traffic citation submitted by Defendants also shows that Ard most likely resided in Alabama after the time of the accident.
Plaintiff filed the instant lawsuit on February 7, 2002. Plaintiff's state court petition alleges that Ard is an Alabama citizen. The case was removed to federal court on March 19, 2002. Only now in the remand proceedings does Plaintiff argue that Ard could possibly be a Louisiana citizen because he was driving in Louisiana at the time of the accident. This argument has little merit because Ard was working for an Alabama trucking company at the time of the accident. More than likely, Ard drove through several states, including Louisiana, in the course and scope of his employment. Plaintiff also incorrectly argues in his supplemental memorandum that Ard's employment application shows that he resided in Louisiana prior to being hired by MG Tank Lines. A close look at the application shows that this is not true.
Defendants' evidence is sufficient to show that Ard was domiciled in Alabama both at the time of the accident and in the subsequent months. The evidence, taken as a whole, establishes that Ard was an Alabama citizen at the end of May, 2001. Under Coury, 85 F.3d at 250, Defendants have established a presumption of continuing domicile in Alabama.
To rebut this presumption, Plaintiff must come forward with at least some evidence showing that Ard acquired a new domicile in Louisiana. However, Plaintiff provides no evidence contradicting Defendants' evidentiary support for their removal of this case. While Plaintiff's burden to come forward on the issue is light, it is not enough to merely rely on unsubstantiated assertions, as he does here. Id. Therefore, under the Coury presumption, it is more likely than not Ard was an Alabama citizen at the time the petition was filed and the case was removed. Defendants have met their burden of establishing complete diversity under § 1332(a)(1). Unless Plaintiff can show that a "procedural defect" occurred in the removal, the motion to remand must be denied.
II. Alleged Procedural Defects in the Removal
"A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447 (c). All defects in the removal that do not go the issue of "whether the case originally could have been brought in federal district court" are considered "procedural." Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir. 1991). Objections to "procedural" defects must be raised within thirty days of the notice of removal or they are waived. Id.; Harris v. Hyman Co., 664 F.2d 943, 944 (5th Cir. 1981) (per curiam). This thirty-day deadline is strictly enforced in the Fifth Circuit. In re Shell Oil Co., 932 F.2d 1518, 1522-23 (5th Cir. 1991) (holding that a remand motion, filed thirty-three days after the notice of removal, must be denied where it merely alleges "procedural" defects in the removal).
Plaintiff filed his motion to remand nearly six months after the instant case was removed to federal court. Thus, he waives all objections to "procedural" defects in the removal. This includes his argument that all named defendants have not acquiesced in the removal. Harris, 664 F.2d at 944-45 n. 3 (holding that failure to obtain the acquiescence of all named defendants is a "procedural" defect that is waived if not raised timely). Plaintiff has also waived his objection to Defendants' failure to timely file their Notice of Removal, which was filed more than thirty days after Defendants were served with process.See 28 U.S.C. § 1446 (b).
Even if this were not seen as a "procedural" defect, Plaintiff's argument fails because Defendants did not need Ard's consent to remove the case because he has never been served with process. See Pullman Co. v. Jenkins, 305 U.S. 534, 540, 59 S.Ct. 347, 350 (1939).
Plaintiff argues that Defendants, in their Notice of Removal, improperly certified that they were served with process at later dates than they actually were. As a result, Plaintiff claims that he had a good faith belief that the Notice of Removal was filed timely. He now claims that he did not file his motion to remand timely because of this good faith belief that he later learned was incorrect. As a consequence, Plaintiff maintains that equity calls for remand of the case. However, Plaintiff fails to submit any evidence showing that the mix-up of the dates was anything more than a mistake by Defendants. Furthermore, Plaintiff's counsel received service of the notice before it was even filed in this Court and he had access to the record of this case. The record shows the correct dates on which Defendants were served and the Notice of Removal was filed. Thus, Plaintiff's counsel had the ability to check the dates himself and take the appropriate measures in a timely fashion. Plaintiff's argument does not justify a remand in this case.
Defendant's Notice of Removal states that Hanover was served on February 15, 2002 and MG Tank Lines was served on February 21, 2002. MG Tank Lines was actually served on February 11, 2002. The notice was served on Plaintiff's counsel on March 15, 2002. In Defendants' notice to the state court, they state that the Notice of Removal was filed on March 15, 2002.
Lastly, Plaintiff cites no legal basis for his claim that the case should be remanded because Defendants filed their answer almost five months after the case was removed. The Court interprets this as an alleged "procedural" defect in the removal because it does not go to whether the Court has subject matter jurisdiction over the case. This objection is also waived because it was not raised timely. Accordingly, Plaintiff has waived all of his "procedural" objections to the removal because they were not filed timely pursuant to § 1447(c).
Therefore;
It is HEREBY ORDERED that Plaintiff's Motion to Remand (Rec. Doc. 9) is DENIED.