DEBRA M. BROWN, District Judge.
Before the Court are Defendant 1 Wheeler Trucking Company, LLC's motion to dismiss, Doc. #9; Defendants Wheeler Supportive Services, Inc., and Zackery Wheeler's motion to dismiss, Doc. #14; Plaintiff Anthony Robinson's Second Amended Motion to Remand, Doc. #20; and Robinson's motion to strike, Doc. #44. For the reasons that follow, the motion to remand will be granted and the remaining motions denied as moot.
This case arises from a contractual arrangement under which Anthony Robinson was hired to transport cargo utilizing a tractor-trailer owned by Defendants. On October 3, 2014, Robinson, "a resident citizen of . . . Mississippi," was involved in a single-vehicle trucking accident in Monteagle, Tennessee. Doc. #2 at ¶¶ 1, 10, 18. Robinson alleges that while making "his de[s]cent down Monteagle mountain," the brakes on his tractor-trailer failed. Id. at ¶ 10. Robinson contends that in order to avoid a collision with other vehicles on the highway, he steered the tractor-trailer "over the [highway] guardrail and down a steep embankment." Id. "[A]s the tractor-trailer went over the embankment, . . . [Robinson] jumped from the cab and was severely injured." Id. at ¶ 11. Robinson's alleged injuries include "a severe head injury, cuts, bruises, and other related injuries." Id. at ¶ 12.
On March 11, 2015, Robinson filed suit in the Circuit Court of Montgomery County, Mississippi, against 1 Wheeler Company, LLC ("1 Wheeler"), Zackery Wheeler, and Wheeler Supportive Services, Inc. ("Wheeler Services"), alleging causes of action for negligence, gross negligence, and breach of contract. Id. at ¶¶ 13-32. On August 14, 2015, 1 Wheeler removed the case to this Court pursuant to 28 U.S.C. §§ 1441 and 1332(a). Doc. #1. In its notice of removal, 1 Wheeler alleges complete diversity of citizenship between the parties and that the amount in controversy exceeds $75,000. Id. Three days later, on August 17, 2015, Wheeler Services and Zackery, "only as sole shareholder of Wheeler Supportive Services, Inc.," filed a notice of joinder and consent to 1 Wheeler's removal notice. Doc. #5 at 1.
On August 20, 2015, United States Magistrate Judge Jane M. Virden ordered 1 Wheeler to supplement its Notice of Removal with information concerning "the citizenship of [its] LLC members."
On September 3, 2015, Robinson moved for an order granting jurisdiction-related discovery and an extension of time to respond to 1 Wheeler's motion to dismiss. Doc. #13. On September 11, 2015, Wheeler Services and Zackery, "as owner and sole shareholder of Wheeler Supportive Services, Inc.," filed a Motion to Dismiss for Lack of Personal Jurisdiction or, Alternatively, Motion to Dismiss for Improper Venue. Doc. #14 at 1. The same day, Robinson filed a Motion to Remand. Doc. #16. On September 14, 2015, Wheeler Services and Zackery, "as owner and sole shareholder of Wheeler Supportive Services, Inc.," filed a second notice of joinder and consent. Doc. #17. Also that day, Robinson filed an Amended Motion to Remand. Doc. #19. Two days later, Robinson filed a Second Amended Motion to Remand, which included a minor change to the facts section of his motion and the addition of two exhibits. Doc. #20.
On September 22, 2015, Magistrate Judge Virden entered an order allowing Robinson forty-five days of jurisdiction-related discovery and ordering that Robinson's response to 1 Wheeler's motion to dismiss would be due 14 days after the close of the discovery period. Doc. #26 at 1-2. Before the jurisdiction-related discovery period concluded, 1 Wheeler withdrew its objection to personal jurisdiction, mooting the need for such discovery and leaving only its venue challenge for the Court's consideration. Doc. #34.
On October 12, 2015, the parties filed a joint stipulation dismissing without prejudice Wheeler Services and Zackery, "as owner and sole shareholder of Wheeler Support[ive] Services, Inc." Doc. #36 at 1. That same day, Robinson filed a motion seeking entry of an order setting a response deadline as to the remaining issue of improper venue, deeming the personal jurisdiction objection withdrawn, and deeming moot the propounded jurisdictional discovery. Doc. #37 at 3. Before the Court ruled on the motion, Robinson responded to 1 Wheeler's motion to dismiss, and 1 Wheeler filed its reply in support of the motion. Doc. #40; Doc. #42.
The Court will first address the motion to remand. See H.R. ex rel. Reuter v. Medtronic, Inc., 996 F.Supp.2d 671, 675 n.2 (S.D. Ohio 2014) (explaining that "motion to remand must be resolved before . . . motion[s] to dismiss").
In his Second Amended Motion to Remand,
A defendant may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction. See 28 U.S.C. § 1441(a). A court, however, "must presume that a suit lies outside its limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001); see also Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
To remove an action to federal court from state court, a defendant must file a notice of removal "signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal." 28 U.S.C. § 1446(a). "Promptly after the filing of [the] notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d).
Under 28 U.S.C. § 1446(b)(1), the removal of a case is timely if filed "within 30 days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." The "defendant's thirty-day removal period commences on formal service of process, not merely on receipt of actual notice of the complaint through informal channels." City of Clarksdale v. BellSouth Telecomms., Inc., 428 F.3d 206, 210 (5th Cir. 2005) (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999)). Though removal is a question of federal law, proper service is defined by state law. Clarksdale, 428 F.3d at 210-11. Improper service on a defendant does not start the thirty-day time period for removal. See Thompson v. Deutsche Bank Nat'l Trust Co., 775 F.3d 298, 304 (5th Cir. 2014).
In cases with multiple defendants, the rule of unanimity requires that "all defendants who have been properly joined and served must join in or consent to the removal of the action" to federal court. 28 U.S.C. § 1446(b)(2)(A); see also Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 (5th Cir. 1988) ("all defendants who are properly joined and served must join in the removal petition, and that failure to do so renders the petition defective") (internal citations omitted). "If 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 earlierserved defendant did not previously initiate or consent to removable." 28 U.S.C. § 1446(b)(2)(C). "The earlier-served defendant[s] must consent to removal prior to the expiration of the later-served defendant's thirty-day deadline to remove the action." Rouege Trucking, LLC v. Canales, No. CIV.A. 14-304-JJB, 2015 WL 127870, at *4 (M.D. La. Jan. 7, 2015) (citing Andrews v. AMERCO, 920 F.Supp.2d 696, 702 (E.D. La. 2013)); see also Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002) ("in order to comply with the requirements of § 1446, all served defendants must join in the removal petition filed prior to the expiration of the removal period") (citation omitted).
The rule of unanimity "simply requires that there be `some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have the authority to do so, that it has actually consented to such action.'" Gillis, 294 F.3d at 759 (citing Getty Oil, 841 F.2d at 1262 n.11) (emphasis in original). "[E]ach defendant must consent to removal `officially,' `affirmatively' and `unambiguously.'" Spillers v. Tillman, 959 F.Supp. 364, 372 (S.D. Miss. 1997) (citing Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 508-09 (E.D. Va. 1992)). Importantly, in evaluating the propriety of a removal, "[a]ny ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand." Manguno, 276 F.3d at 723 (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
Robinson first contends that 1 Wheeler failed to file its Notice of Removal within 30 days of receiving notice that the lawsuit had been filed. Doc. #20 at ¶¶ 21-33.
1 Wheeler has provided proof that its counsel accepted service of the summons and complaint on July 17, 2015, after Robinson was unable to locate 1 Wheeler's registered agent for service. Doc. #1-3. Robinson does not contest this proof of service. Instead, he argues that the 30-day period should begin to run from April 24, 2015, the date that 1 Wheeler's members, Zackery and Wheeler Services, were served with their respective summons and complaint. Doc. #20 at ¶¶ 21-33. Robinson contends this provided 1 Wheeler with actual notice sufficient to commence the 30-day removal period, especially since 1 Wheeler "had no valid registered agent." Id. at ¶ 30 n.3. Robinson provides no authority in support of this argument.
As explained in Clarksdale, the 30-day removal period commences on formal service of process, which is defined by state law. See 428 F.3d at 210-11. Under Mississippi law, as is relevant here,
The proofs of service executed as to Zackery and Wheeler Services indicate that only those parties were served with a summons and complaint. Doc. #1-4; Doc. #43. There is no evidence that Zackery or Wheeler Services ever accepted service of a summons and complaint on behalf of 1 Wheeler. Thus, at best, formal service of process on Zackery and Wheeler Services could have only provided 1 Wheeler with actual knowledge of this lawsuit. Because actual knowledge does not amount to formal service of process under Mississippi law, service on Zackery and Wheeler Services was insufficient to commence the 30-day removal period as to 1 Wheeler.
Based on these facts and the record now before the Court, 1 Wheeler was formally served with process on July 17, 2015, the date its attorney accepted service of the summons and complaint. As a result, the 30-day removal period began to run on July 17, 2015; thus, 1 Wheeler's Notice of Removal, filed on August 14, 2015, was timely.
Robinson next contends that remand is required because 1 Wheeler failed to file the Amended Notice of Removal with the state court. Doc. #20 at ¶¶ 34-35. In support of this contention, Robinson argues that because the Notice of Removal contained a deficiency (failure to properly allege citizenship of LLC members), 1 Wheeler could only effectuate removal under 28 U.S.C. § 1446(d) by filing a copy of the Amended Notice of Removal in the state court. Id. This argument misses the mark.
Under 28 U.S.C. § 1446(d), "removal is effected by the defendant taking three procedural steps: filing a notice of removal in the federal court, filing a copy of this notice in the state court, and giving prompt written notice to all adverse parties." 14C CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3736 (4th ed.) (citing U.S.C. § 1446(d)) (internal footnotes omitted). "While the statute requires that the removing defendant give notice to the court and all parties, . . . Fifth Circuit case law consistently suggests that the state court is divested of jurisdiction when the state court receives either actual or constructive notice of the removal." McAdams v. Medtronic, Inc., No. CIV. A. H-10-2336, 2010 WL 2710393, at *2 (S.D. Tex. July 7, 2010) (collecting cases).
1 Wheeler filed its Notice of Removal in federal court on August 14, 2015, and on August 17, 2015, the Montgomery County Circuit Clerk's Office received a copy of the notice.
For these reasons, the Court finds that removal was effected on August 17, 2015.
Robinson next argues:
Doc. #20 at ¶ 36. Robinson offers no authority in support of this argument, and 1 Wheeler does not address the argument in its response. The Court nonetheless finds this argument unpersuasive.
Although Robinson mentions both equitable and judicial estoppel, his argument concerns only judicial estoppel. This is so because Robinson has not put forth any argument that he detrimentally relied on 1 Wheeler's supposed affirmative defenses regarding process and service of process. See USLIFE Corp. v. U.S. Life Ins. Co., 560 F.Supp. 1302, 1304 (N.D. Tex. 1983) ("Equitable estoppel focuses on the relationship between the parties to the prior litigation, and it applies where one of the parties has detrimentally relied upon the position taken by the other party in the earlier proceeding.") (citation omitted). To the contrary, Robinson's argument focuses only on an alleged inconsistent position that 1 Wheeler has taken in this litigation. See, e.g., Doc. #20 at ¶ 36 ("1 Wheeler Trucking Company, LLC's attempt to simultaneously act as a putative later served defendant, while maintaining that it has defenses to service and service of process and to timely service should be resolved in favor of remand."). This is a prototypical judicial estoppel argument. See USLIFE Corp., 560 F. Supp. at 1304 ("[J]udicial estoppel is an equitable principle which generally operates to preclude a party from asserting a position in a legal proceeding inconsistent with a position taken by that party in the same or a prior litigation.") (citation omitted). The Fifth Circuit has explained that "[a] court should apply judicial estoppel if (1) the position of the party against which estoppel is sought is plainly inconsistent with its prior legal position; (2) the party against which estoppel is sought convinced a court to accept the prior position; and (3) the party did not act inadvertently." Jethroe v. Omnova Sols., Inc., 412 F.3d 598, 600 (5th Cir. 2005) (citation omitted). Robinson has not offered any argument or evidence that either the state court or this Court has ruled upon 1 Wheeler's purported affirmative defense regarding service of process. This prohibits the Court from applying judicial estoppel. Id.
Robinson does not otherwise contest 1 Wheeler's status as the later-served defendant. Nor could he because, as explained above, Zackery and Wheeler Services were served on April 24, 2015, and 1 Wheeler was not served until July 17, 2015.
In short, Robinson's estoppel arguments fail.
Finally, Robinson contends that 1 Wheeler's removal violates the rule of unanimity. He argues that Zackery and Wheeler Services failed to timely join or consent to 1 Wheeler's Amended Notice of Removal. Doc. #20 at ¶¶ 14-20. In response, 1 Wheeler concedes that its Amended Notice of Removal "did not explicitly re-state the consent of [Zackery and Wheeler Services]" but argues unanimity nonetheless exists because Zackery and Wheeler Services filed a "`written indication' of actual consent . . . on August 17, 2015—within 30-days of service of process on 1 Wheeler." Doc. #35 at ¶¶ 17, 20. In reply, Robinson re-urges his argument that Zackery and Wheeler Services never consented to the Amended Notice of Removal and additionally argues that "[t]he defective Notice of Removal does not include a removal consent or joinder by Zackery Wheeler in his individual capacity."
As for Robinson's initial argument, 1 Wheeler is correct. The salient inquiry is not whether Zackery and Wheeler Services timely consented to the Amended Notice of Removal; it is whether Zackery and Wheeler Services filed an unambiguous written indication of their consent before the expiration of the removal period.
Here, the removal period expired on August 17, 2015-30 days after 1 Wheeler was served with process; thus, Zackery and Wheeler Services had until August 17 to join or consent to the removal.
As explained above, Zackery was served with process on April 24, 2015.
The text of Zackery's written position regarding 1 Wheeler's removal notice states:
Defendants Zachery Wheeler only an sale shareholder of Wheeler Supportive Services, Inc. and Wheeler Supportive Services, Inc., join in and consent to the Notice of Removal filed in this case, and incorporates the grounds asserted as their own.
This the 17
Doc. #5. This filing cannot be construed to convey Zackery's official, affirmative, and unambiguous consent to removal.
Zackery's inclusion of the language, "only as sole shareholder of Wheeler Supportive Services, Inc.," renders his attempted consent a nullity. By using the phrase "only as sole shareholder," Zackery indicated his intent to only consent in one capacity to the exclusion of all other capacities.
Moreover, because the same limiting language is included in the signature line of Zackery's counsel, Roy A. Smith, Jr., ambiguity exists concerning whether Smith is authorized to represent Zackery in his individual capacity. This ambiguity must be construed in favor of remand. See Ramirez v. Lowe's Home Ctrs. LLC, No. 2:15-CV-202, 2015 WL 4488659, at *2 (S.D. Tex. July 22, 2015) (citing Dodson v. Spiliada Mar. Corp., 951 F.2d 40, 42-43 (5th Cir. 1992) ("Any ambiguities and all disputed questions of fact are construed against removal because the removal statute should be strictly construed in favor of remand.")).
For these reasons, the Court cannot conclude that Zackery timely offered his official, affirmative, and unambiguous consent to 1 Wheeler's removal. This matter therefore must be remanded. See Alford v. Chevron U.S.A. Inc., No. CIV.A. 13-5457, 2014 WL 37600, at *3 (E.D. La. Jan. 6, 2014) (citing Ortiz v. Young, 431 F. App'x 306, 307 (5th Cir. 2011)) (If adequate "written consent on the part of all defendants is lacking when the thirty-day removal period elapses, the notice of removal is deemed defective and the case must be remanded.") (emphasis added); see also Crowley v. Amica Mut. Ins. Co., No. 12-CV-0775, 2012 WL 3901629, at *3 (E.D. La. Sep. 7, 2012) ("[C]ourts applying Getty Oil have remanded cases for lack of written consent when the nonmoving defendants submitted affidavits attesting to their consent after the 30-day period for removal had ended.").
Insofar as this case must be remanded, the pending motions to dismiss and motion to strike will be denied as moot.
For the reasons explained above: (1) 1 Wheeler Trucking Company, LLC's motion [9] to dismiss is
In re Beasley, No. 1:15-CV-262-HSO-JCG, 2015 WL 5838188, at *4 (S.D. Miss. Oct. 7, 2015).
Doc. #37 at ¶ 8. Notably, none of the parties responded to this motion or indicated a different understanding of the stipulation of dismissal. This further supports the Court's interpretation that the "only as sole shareholder" language was intended to invoke some capacity other than Zackery's individual capacity.
