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Piard v. VRP Transportation, Inc.

United States District Court, M.D. Alabama, Eastern Division

January 15, 2019

SHAMARR PIARD and TABATHA ARNOLD, Plaintiffs,
v.
VRP TRANSPORTATION, INC., and GEICO CASUALTY COMPANY, Defendants.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         Before the court is Plaintiffs' motion to remand. (Doc. # 8.) For the reasons stated below, Defendants are granted leave to conduct limited jurisdictional discovery on the amount in controversy, and additional briefing will be permitted. Ruling is reserved on the motion to remand.

         I. BACKGROUND

         Plaintiffs filed this case on August 30, 2018, in an Alabama circuit court bringing state-law claims related to a motor vehicle accident. (Doc. # 1-1.) Plaintiffs assert they were involved in a collision with a tractor-trailer driven by an unidentified employee of Defendant VRP Transportation, Inc. (“VRP”). Plaintiffs maintain that the tractor-trailer unexpectedly slowed, causing a collision. After the collision, the VRP driver is alleged to have left the scene of the accident in violation of state law.

         Plaintiffs sue VRP based on various theories of negligence and wantonness. They also bring a claim for uninsured/underinsured motorist coverage against their carrier, Defendant Geico Casualty Company (“Geico”). Seeking unspecified compensatory and punitive damages, Plaintiffs allege serious and permanent injuries. They have sought medical treatment for their injuries and combined their current bills total nearly $12, 000.

         The state-court record reflects that Geico was served on August 31, 2018 (Doc. #1-2, at 3), but it does not reflect the date of service on VRP, much less whether service on VRP was proper. The state-court record contains only a notation that service for VRP was “issued” by certified mail on August 30, 2018. (Doc. # 1, at 2; Doc. # 1-2, at 2); see also Ala. R. Civ. P. 4(a)(1) (“Upon the filing of the complaint, . . . the clerk shall forthwith issue the required summons or other process for service upon each defendant.”). The record contains no information about whether or when VRP was served after issuance of the service documents.

         VRP filed a notice of removal on October 1, 2018, based on diversity jurisdiction. See 28 U.S.C. §§ 1332(a), 1446(b)(1). Plaintiffs admit that the removal would have been timely if Geico had filed a consent to the removal on the same date. (Doc. # 8, at 13.) But Geico did not affirmatively join the removal. Instead, VRP merely stated in the notice of removal that it “anticipate[d]” that Geico would file a notice of consent but did not explicitly state whether Defendant Geico in fact had consented. (Doc. # 1, at 8.) And, at the time of removal, there was nothing else in the record establishing that VRP had Geico's consent when it removed this action. (Doc. # 1.) While VRP attached to the notice of removal an affidavit from a Geico representative confirming its citizenship (Doc. # 1-5), the affidavit is silent as to whether Geico joined in the removal.

         On October 10, 2018, Plaintiffs filed the instant motion to remand, claiming that the removal was improper due to Geico's lack of consent and VRP's failure to demonstrate the requisite amount in controversy. (Doc. # 8.) That same day, Geico filed a notice of its consent to removal. (Doc. # 9.) Then, on October 16, 2018, VRP filed an amended notice of removal to incorporate Geico's express consent. (Doc. # 14.) On October 24, 2018, VRP responded to the motion to remand. It contends that Geico's post-removal consent and VRP's amendment to the notice of removal cured any procedural deficiency caused by Geico's failure to timely consent. It also argues that the amount in controversy is apparent from the face of the complaint. (Doc. # 16.) Geico joined VRP's opposition to the motion to remand on October 25, 2018. (Doc. # 17.)

         II. LEGAL STANDARD

         Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Accordingly, they only have the power to hear cases over which the Constitution or Congress has given them authority. See Kokkonen, 511 U.S. at 377. Congress has empowered the federal courts to hear cases removed by a defendant from state to federal court if the plaintiff could have brought the claims in federal court originally. See 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Federal courts may exercise diversity jurisdiction over civil actions where the amount in controversy exceeds $75, 000 exclusive of interest and costs, and the action is between citizens of different states. 28 U.S.C. § 1332(a)(1).

         The removing defendant bears the burden of establishing that the federal district court has jurisdiction over an action. See Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996) (placing burden of establishing federal jurisdiction on the defendant seeking removal to federal court). And, although the Eleventh Circuit favors remand where federal jurisdiction is not absolutely clear, see Burns, 31 F.3d at 1095, “federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996).

         III. DISCUSSION

         Federal courts obtain diversity jurisdiction when the suit is between citizens of different states and the amount in controversy exceeds the statutorily prescribed amount of $75, 000. See 28 U.S.C. § 1332(a). When a case brought in a state court falls within the original jurisdiction of the federal courts, the case may be removed “to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). When removing under § 1441(a), “all defendants who have been properly joined and served must join in or consent to the removal of the action.” Id. § 1446(b)(2)(A). In this case, to be timely, the notice of removal must be filed “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading . . . .” Id. § 1446(b)(1). This statutory “requirement that all defendants consent to and join a notice of removal in order for it to be effective is referred to as the ‘unanimity rule.'” Stone v. Bank of New York Mellon, N.A., 609 Fed.Appx. 979, 981 (11th Cir. 2015) (citing Bailey v. Janssen Pharm., Inc., 536 F.3d 1202, 1207 (11th Cir. 2008)). Moreover, “[i]f defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.” § 1446(b)(2)(C). “The failure to join all defendants in the [removal] petition is a defect in the removal procedure.” In re Bethesda Mem'l Hosp., Inc., 123 F.3d 1407, 1410 n.2 (11th Cir. 1997) (collecting cases); see also Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010) (“[W]hether removal is timely . . . is not a jurisdictional issue.”).

         Plaintiffs are citizens of Alabama, and Plaintiffs noted in their Complaint that Defendants VRP and Geico are “foreign corporation[s].” (Doc. # 1-1, at ¶¶ 2-3.) Plaintiffs do not dispute that there is complete diversity of the parties, and VRP has established that it and Geico are not citizens of Alabama. (Doc. # 1-5.) Plaintiffs, instead, assert that Defendants failed to meet the timeliness requirement for ...


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