Filed: Jul. 27, 2016
Latest Update: Jul. 27, 2016
Summary: ORDER RONALD A. WHITE , District Judge . Plaintiffs filed their Petition on April 7, 2016 in Bryan County, Oklahoma. Penske Truck Leasing Corp. (hereinafter "Penske") filed a Notice of Removal pursuant to 28 U.S.C. 1441 on May 27, 2016, arguing that the court should disregard the citizenship of Xpressway Motor, LLC (hereinafter "Xpressway") because it was procedurally misjoined. Now before the court is Plaintiff's motion to remand filed June 17, 2016 [Docket No. 11]. Plaintiff argues tha
Summary: ORDER RONALD A. WHITE , District Judge . Plaintiffs filed their Petition on April 7, 2016 in Bryan County, Oklahoma. Penske Truck Leasing Corp. (hereinafter "Penske") filed a Notice of Removal pursuant to 28 U.S.C. 1441 on May 27, 2016, arguing that the court should disregard the citizenship of Xpressway Motor, LLC (hereinafter "Xpressway") because it was procedurally misjoined. Now before the court is Plaintiff's motion to remand filed June 17, 2016 [Docket No. 11]. Plaintiff argues that..
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ORDER
RONALD A. WHITE, District Judge.
Plaintiffs filed their Petition on April 7, 2016 in Bryan County, Oklahoma. Penske Truck Leasing Corp. (hereinafter "Penske") filed a Notice of Removal pursuant to 28 U.S.C. § 1441 on May 27, 2016, arguing that the court should disregard the citizenship of Xpressway Motor, LLC (hereinafter "Xpressway") because it was procedurally misjoined. Now before the court is Plaintiff's motion to remand filed June 17, 2016 [Docket No. 11]. Plaintiff argues that the removal was untimely, that the Defendants did not unanimously consent to the removal, that the Tenth Circuit does not recognize procedural misjoinder and that even if it did, Xpressway was properly joined.
When a civil action is brought in a state court "of which the district courts of the United States have original jurisdiction," the defendants may remove the action to federal court. 28 U.S.C. § 1441(a). Removing defendants bear the burden of establishing jurisdiction. Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001). As this removal was pursuant to the general removal statute, 28 U.S.C. § 1441(a), "all defendants who have been properly joined and served must join in or consent to the removal of the action." 28 U.S.C. § 1446(b)(2)(A). Sections 1441 and 1446 "require all defendants to join in the removal petition." Akin v. Ashland Chemical Co., 156 F.3d 1030, 1034 (10th Cir. 1998).
Penske was served on April 26, 2016.1 Docket No. 11, Exh. 4. Defendant Carolina Casualty Insurance Company (hereinafter "Carolina Casualty") was served on May 11, 2016. Docket No. 11, Exh. 6. Defendants Carolina Casualty and LTL USA, Inc. (hereinafter "LTL"), represented by the same counsel, filed a joint answer on May 13, 2016. Docket No. 3, Exh. 3.
Although they had been served, Penske admits that Carolina Casualty and LTL did not join or consent to the removal on May 27, 2016. Penske argues that at the time of removal, counsel for Carolina Casualty and LTL had informed it that they would "likely" consent. The likelihood of consent is not consent. Penske argues, however, that Carolina Casualty and LTL had thirty days, until June 11, 2016, to consent. On June 29, 2016, Penske's counsel received notice from counsel for Carolina Casualty and LTL stating that they did not consent to removal. As there was not consent from all properly joined and served Defendants, the removal was procedurally defective. See 28 U.S.C. § 1447(c); Cornwall v. Robinson, 654 F.2d 685 (10th Cir. 1981). Accordingly, the motion to remand [Docket No. 11] is hereby granted. This action is hereby remanded to the District Court of Bryan County, Oklahoma.2
