United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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,
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
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
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.)
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).
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).
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
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 ...