Jones v. Masterank America, Inc., et al

RESPONSE/MEMORANDUM in Opposition

E.D. La.January 9, 2018

4813-5269-2570 2904785-000021 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ERIC P. JONES VERSUS MASTERANK AMERICA, INC., ETAL. * * * * * * * * * * * * * * * * * * * * * * CIVIL ACTION NO. 17-15879 SECTION “G” (4) JUDGE NANNETTE JOLIVETTE BROWN MAG. JUDGE KAREN WELLS ROBY DEFENDANT TRINITY INDUSTRIES, INC.’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO REMAND Defendant, Trinity Industries, Inc. (“Trinity”) submits this Memorandum in Opposition to Plaintiff’s Motion to Remand.1 For the reasons discussed more fully below, Plaintiff’s Motion to Remand should be denied. I. BACKGROUND AND SUMMARY OF ARGUMENT Plaintiff attempts to remand this matter back to state court despite Trinity’s proper removal of this suit to this Court.2 On November 13, 2017, Trinity was served with process for the first time in this case, and Trinity timely filed for removal on December 8, 2017 on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(2).3 In his Motion to Remand, Plaintiff makes one -- and only one -- argument for remand: that all defendants did not sign the Notice of Removal. As set forth below, however, the Fifth Circuit does not require all defendants to actually sign the Notice; to the contrary, the applicable statute and pertinent case law simply require that all defendants consent to the removal -- which consent can be expressed in writing by the removing defendant acting on the nonremoving defendants’ behalf. That is exactly what 1 See Rec. Doc. No. 13 (Motion to Remand). 2 See Rec. Doc. No. 1 (Notice of Removal). 3 See Rec. Doc. No. 1-3 at p. 1. Case 2:17-cv-15879-NJB-KWR Document 14 Filed 01/09/18 Page 1 of 7 2 4813-5269-2570 2904785-000021 happened here and, under applicable authorities, that is all that is required. Remand is therefore inappropriate. II. LAW AND ARGUMENT 28 U.S.C. § 1446 sets forth the requirements to remove a civil action from state to federal court.4 Removal is proper in this case on the basis of diversity jurisdiction under 28 U.S.C. §§ 1332(a)(2) and 1441(a)-(b), as set forth in Trinity’s Notice of Removal, because (1) the action is between citizens of a State and citizens of a foreign state; and (2) the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.5 Plaintiff takes issue with the fact that all defendants did not sign the notice of removal, but this is not required under Fifth Circuit case law, as described below.6 A. Removal is Proper Because Trinity Had Authority to and Properly Represented Codefendants’ Consent to Removal. Among other things, 28 U.S.C. § 1446 requires that a defendant seeking to remove a case to federal court must obtain the consent of all properly served defendants for removal.7 While the Supreme Court has held that removal based on a federal question requires such unanimous consent of all defendants, the removal statute itself does not speak directly to the issue of what form a codefendant’s consent must take, stating only, “[a] defendant or defendants desiring to remove any civil action from State court shall file ...a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure.”8 Neither the Supreme Court 4 See 28 U.S.C. §1446; see also 28 U.S.C. §1441. 5 See Rec. Doc. No. 1 at pp. 3-4. Interestingly, despite this Court’s December 26, 2017 Order (Rec. Doc. No. 10), Plaintiff has not sought remand on the basis of the amount-in-controversy requirement. 6 Burnett v. ARCCA Inc., No. CV 15-1214, 2016 WL 828151, at *2–3 (W.D. La. Feb. 25, 2016) (“The Fifth Circuit has not interpreted the rule of unanimity to require each defendant to personally sign the notice of removal. . . ”). 7 See 28 U.S.C. §1446(b). 8 See Chi., Rock Island, & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248 (1900) (emphasis added); see also 28 U.S.C. § 1446(a). Case 2:17-cv-15879-NJB-KWR Document 14 Filed 01/09/18 Page 2 of 7 3 4813-5269-2570 2904785-000021 nor Congress has clarified what form a codefendant’s consent must take, and the circuits are split on this issue.9 In a similar vein, this district has expressly recognized the Fifth Circuit’s lack of express ruling as to what formality is required to meet the requirement that all defendants “join in” the petition for removal.10 Importantly, unanimous consent to removal “does not mean that each defendant must sign the original petition for removal, but there must 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 authority to do so, that it has actually consented to such action.”11 That expression of consent can take many forms. For instance, in Sercovich v. State Farm Mut. Auto. Ins. Co., No. CIV. A. 99-2476, 1999 WL 970346, at *1 (E.D. La. Oct. 21, 1999), Judge Fallon held that counsel’s affirmation (in the Notice of Removal) that they had spoken with other defense counsel and obtained their consent for removal was sufficient to meet the consent requirement for removal.12 Judge Fallon determined that in doing so, the removing defendant’s counsel had purported to act on defendant’s behalf and to have the authority to do so.13 Moreover, this district in Sercovich explained that removing defendant’s counsel, as an officer of the Court, sufficiently alleged the consent of the nonremoving defendant through the statements in his petition.14 9 See A.R. v. Norris, No. 3:15CV1780, 2015 WL 6951872, at *2–3 (M.D. Pa. Nov. 10, 2015) (discussing split among the circuits regarding the form required to indicate consent to removal). 10 See White v. Chevron, U.S.A., Inc., No. CIV. A. 90-0113, 1990 WL 28167, at *3 (E.D. La. Mar. 14, 1990). 11 Burnett v. ARCCA Inc., No. CV 15-1214, 2016 WL 828151, at *2–3 (W.D. La. Feb. 25, 2016); see also Mendoza v. Hicks, No. CV 15-1455, 2015 WL 13532727, at *1–2 (E.D. La. June 17, 2015) (citing Getty Oil Corp. v. Insurance Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988)). 12 See Sercovich v. State Farm Mut. Auto. Ins. Co., No. CIV. A. 99-2476, 1999 WL 970346, at *1 (E.D. La. Oct. 21, 1999). 13 Id. 14 Id. Case 2:17-cv-15879-NJB-KWR Document 14 Filed 01/09/18 Page 3 of 7 4 4813-5269-2570 2904785-000021 Likewise, in White v. Chevron U.S.A., No. 90-CV-113, 1990 WL 28167, at *3 (E.D. La. 1990), the removing defendant represented in the Notice of Removal that “all defendants named in plaintiff’s Petition have consented to removal.”15 Noting that the “Fifth Circuit has not clearly stated exactly what formalities are necessary to meet the requirement that all defendants ‘join in’ in the petition for removal,” this district in White approved of the removing defendant’s representations as satisfying the requirement of unanimity.16 Consistent with the holdings in White and Sercovich, this district has stressed that the Fifth Circuit, in Getty Oil Corp. v. Insurance Co. of North America,17 has held that consent can be accomplished through a person or entity purporting to act on a defendant’s behalf and to have the authority to do so.18 This district further stated, “[s]uch a person or entity can sufficiently ‘bind’ another defendant to a removal action by adequately alleging the consent of that defendant.”19 What this district has permitted in Sercovich and White is exactly what happened here -- the removing defendant (Trinity) contacted the nonremoving defendants’ counsel (GATX and the Masterank entities) and expressly obtained their consent for, and joinder in, the removal. That representation was then asserted, as an officer of the Court, in the Notice of Removal.20 Consistent with Sercovich and White, and the plain language of the applicable statutes (28 U.S.C. §§ 1332, 1441, and 1446), that is all that is required. The Notice of Removal meets all necessary requirements and remand is therefore not appropriate.21 15 See White v. Chevron U.S.A., No. 90-0113, 1990 WL 28167, at *3 (E.D. La. 1990). 16 Id. 17 See Getty Oil Corp. v. Insurance Company of North America, 841 F.2d 1254 (5th Cir. 1988). 18 Sercovich, 1999 WL 970346, at *1 (citing Getty Oil Corp., 841 F.2d at 1262). 19 Id. (emphasis added). 20 Rec. Doc. No. 1 at p. 6 (¶ 17). 21 Separately, Plaintiff asserts that codefendant GATX Corporation filed two state court answers to the petitions which, according to Plaintiff, indicates an “intention to proceed with matter in state court.” Case 2:17-cv-15879-NJB-KWR Document 14 Filed 01/09/18 Page 4 of 7 5 4813-5269-2570 2904785-000021 B. Removal is Proper Because Trinity had Authority to Represent Codefendants’ Consent to Removal. Trinity met the unanimous consent requirement prior to filing its Notice of Removal, and indicated the consent of the codefendants on their behalf in the Notice, stating: C. Consent of All Properly Joined Codefendants to File Notice of Removal 17. Prior to filing this Notice, Trinity contacted counsel for all other codefendants and obtained their consent to remove this case. As in Sercovich and White, Trinity’s counsel, as an officer of the Court, represented that he spoke with codefendant’s counsel to obtain their consent for removal.22 As the Eastern District held in these cases, the representation contained in Trinity’s Notice of Removal is sufficient to meet the requirement that all defendants join in removal.23 As noted above, not only is Trinity’s representation consistent with the language of the statute and case law from this district, it also comports with the holdings in the Fourth, Sixth, Eighth, and Ninth circuits, which have found similar representations sufficient.24 The potential for Rule 11 sanctions and a codefendant’s opportunity to “alert the court to any falsities in the removing defendant’s notice serve as safeguards to prevent removing defendants from making false representations of unanimous consent and forcing codefendants into a federal forum against Rec. Doc. No. 10 at p. 3. Plaintiff cites no case law for this argument because no law supports it. In fact, 28 U.S.C. § 1446(b)(2)(C) expressly permits an earlier-served defendant (like GATX) to consent to removal when a later-served defendant (like Trinity) files its notice of removal, even where the earlier- served defendant did not previously initiate or consent to removal. 28 U.S.C. § 1446(b)(1)(C); see also Bisso Marine Co. v. Techcrane Int’l, LLC, No. 14-CV-0375, 2014 WL 4489618, at *2 (E.D. La. Sept. 10, 2014). 22 See Sercovich, 1999 WL 970346, at *1; White, 1990 WL 28167, at *3. 23 Id. 24 See Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015) (notice of removal signed and filed by attorney for one defendant and representing unambiguously that other defendants consented to removal satisfies the removal statute’s unanimous consent requirement); see also Mayo v. Bd. of Educ., 713 F.3d 735, 742 (4th Cir. 2013) (same); see also Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009) (same); See also Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195, 201-02 (6th Cir. 2004) (same). Case 2:17-cv-15879-NJB-KWR Document 14 Filed 01/09/18 Page 5 of 7 6 4813-5269-2570 2904785-000021 their will.”25 Here, no codefendant has objected -- precisely because they all specifically gave their consent -- to the removal. III. CONCLUSION The Notice of Removal filed by Trinity complied with all the requirements set forth in 28 U.S.C. §§ 1332, 1441, and 1446, including obtaining the unanimous consent of all diverse defendants. The rule Plaintiff seeks to impose -- that all defendants actually sign the Notice of Removal -- is not supported by the cases cited above from this district, case law from other circuits, or the plain language of the applicable statutes. Accordingly, for the foregoing reasons, Trinity Industries, Inc. respectfully requests that this Court deny Plaintiff’s Motion to Remand. BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC By: /s/ Matthew S. Chester MATTHEW S. CHESTER (#36411) DANIEL J. DYSART (#33812) ASHLEY E. ARNOLD (#37017) 201 St. Charles Avenue, Suite 3600 New Orleans, Louisiana 70170 Telephone: (504) 566-5200 Facsimile: (504) 636-4000 ATTORNEYS FOR DEFENDANT, TRINITY INDUSTRIES, INC. 25 Griffioen, 785 F.3d at 1187-88; see also Mayo, 713 F.3d at 724 (explaining that codefendants can bring misrepresentations to the court’s attention, leading to Rule 11 sanctions); Proctor, 584 F.3d at 1225 (stating that the availability of sanctions and objection minimize policy concerns). Case 2:17-cv-15879-NJB-KWR Document 14 Filed 01/09/18 Page 6 of 7 7 4813-5269-2570 2904785-000021 CERTIFICATE OF SERVICE I certify that on the 9th day of January, 2018, the foregoing pleading was electronically filed with the Clerk of Court using the CM/ECF system, which will automatically forward notification of such filing to all counsel of record, and that I have electronically mailed the document to the following non-CM/ECF participant(s) Andrew C. Kolb, Esq. Kolb Law Firm, LLC 8480 Bluebonnet Blvd., Suite D Baton Rouge, Louisiana 70810 andrew@kolblawfirm.com Counsel for Defendants, Masterank America, Inc. and Masterank Wax, Inc. /s/ Matthew S. Chester MATTHEW S. CHESTER Case 2:17-cv-15879-NJB-KWR Document 14 Filed 01/09/18 Page 7 of 7