Opinion
Civil Action No. 3: 04-CV-0794-B.
November 16, 2004
MEMORANDUM ORDER
Before the Court is Plaintiff Medical Staffing Network, Inc.'s Motion to Remand, filed May 14, 2004. Because all defendants who were served at the time of removal consented to the removal, the Court DENIES Plaintiff's Motion to Remand.
I. BACKGROUND
This breach of contract case was filed by Plaintiff Medical Staffing Network ("Plaintiff") on March 17, 2004, in County Court at Law No. 5 in Dallas County, Texas. Named as defendants were Health Care Capital Inc., HCC Mission Manor, L.P., Health Care Capital of New Mexico, Inc., and HCC of Albuquerque, Inc. ("Defendants"). Mission Manor, Inc. ("Mission Manor") was also named as a defendant.
On April 15, 2004, Defendants removed the case to this Court on the basis of diversity jurisdiction. All defendants except for Mission Manor joined in the removal. Defendants argued that Mission Manor's consent to removal was not needed because Mission Manor was only a nominal defendant. (Defs.' Notice of Removal ¶ 14) Plaintiff filed the instant Motion to Remand on May 14, 2004, contending that Defendants were required to have Mission Manor's consent before removing the case. Defendants responded and claimed that Mission Manor had not been served, and thus Defendants did not need Mission Manor's consent to remove the case. Specifically, Defendants stated that Plaintiff served Mission Manor by serving the Texas Secretary of State, via the substituted service statute found in the Texas Civil Practice and Remedies Code § 17.044 (Vernon 1997 Supp. 2004). The Secretary of State sent the process to the address requested, but the process was returned stamped "refused." (Defs.' Response to Pl.'s Mot. to Remand Ex. A) The parties have fully briefed the issues, and the Court now turns to the merits of the arguments.
II. ANALYSIS
When removing a case involving multiple defendants, the general rule is that all defendants must join in or consent to the removal, else the case must be remanded. Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002). However, the consent of defendants who have not been served is not required in order to properly remove a case. Miranti v. Lee, 3 F.3d 925, 929 (5th Cir. 1993); McCrary v. Kansas City S.R.R., 121 F. Supp. 2d 566, 570 (E.D. Tex. 2000). The question in this case, then, is whether Mission Manor was served, and thus required to consent to the removal, when Plaintiff served the Secretary of State through substituted service.
Although not directly addressed by the Supreme Court or Fifth Circuit, several Texas district courts have held that service on a statutory agent does not qualify as service for removal purposes. McCrary, 121 F. Supp. at 570; Monterey Mushrooms, Inc. v. Hall, 14 F. Supp. 2d 988, 991 (S.D. Tex. 1998); Kurtz v. Harris, 245 F. Supp. 752, 753 (D.C. Tex. 1965). District courts around the country have also held the same. See, e.g., Rowland v. Giftcertificates.com, Inc., 195 F. Supp. 2d 509, 512 (S.D.N.Y. 2002); Lilly v. CSX Transp., Inc., 186 F. Supp. 2d 672, 673-74 (S.D.W. Va. 2002); Hibernia Cmty. Dev. Corp. v. U.S.E. Cmty. Servs. Grp., Inc., 166 F. Supp. 2d 511, 513 (E.D. La. 2001); Skidaway Assocs., Ltd. v. Glen Falls Ins. Co., 738 F. Supp. 980, 982 (D.C.S.C. 1990). Indeed, the removal statute itself requires "receipt by the defendant" of the initial pleading before the thirty-day removal period begins to run. 28 U.S.C. § 1446(b) (1994 Supp. 2004). This Court, then, will follow those courts who have held that service on a statutory agent is not sufficient service for removal purposes.
Here, there is no evidence that Mission Manor ever received actual notice of the suit. Although the process was returned to the Secretary of State marked "refused," there is no evidence that Mission Manor was the entity who refused service or otherwise had any notice of the suit. See Asunto v. Shoup, 132 F. Supp. 2d 445, 454-55 (E.D. La. 2000). Further, although not conclusive, Plaintiff states in its First Amended Complaint that Defendants have "been served with process," but Mission Manor "may be served with process through the Texas Secretary of State," indicating that even Plaintiff recognizes that Mission Manor has not been served yet. (Pl.'s Am. Compl. ¶ II) Because Mission Manor had not been served with process at the time of removal, Defendants were not required to have Mission Manor's consent to remove the case. Therefore, the removal was proper.
III. CONCLUSION
Because all defendants who had been served at the time of the removal joined in the removal, the Court DENIES Plaintiff Medical Staffing Network, Inc.'s Motion to Remand.
SO ORDERED.