United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United States District Judge
before the court is plaintiff Robert Ziegler's motion to
remand. Dkt. 17. Having considered the motion, responses,
reply, surreply, complaint, and the applicable law, the court
is of the opinion that the motion (Dkt. 17) should be DENIED.
case arises from Ziegler's claims against multiple
defendants for property damage and loss sustained during an
overseas shipment of household goods. In 2014, Ziegler moved
from Kuala Lumpur, Malaysia, to Hilltop Lakes, Texas. Dkt. 36
at 3. In order to transport his household goods from Malaysia
to Texas, Ziegler contracted with a Malaysian multimodal
transport company, Subalipack (M) SDN BHD
(“Subalipack”). Dkt. 36 at 3. Ziegler paid
Subalipack RM25, 400.00 (approximately $8, 000 (USD)) for
door-to-door transport of his household goods. Dkt. 2-2 at
18; Dkt. 36 at 3. Subalipack packed Ziegler's goods into
310 boxes, and loaded these boxes into a forty- foot shipping
container. Dkt. 36 at 4. Then, Subalipack subcontracted with
another Malaysian transport company, Honour Lane Logistics
SDN BHD (“Honour Lane”), for transportation of
the shipping container. Id. Honour Lane further
subcontracted with Mediterranean Shipping Company, S.A.
(“MSC SA”), a foreign shipping company, for the
port-to-port transport of the shipping container from Port
Klang, Malaysia to Houston, Texas. Dkt. 25 at 3.
transported the shipping container aboard the M/V MSC SOLA
from Port Klang, Malaysia to the Port of Long Beach,
California. Dkt. 25 at 4. Ziegler claims that A.C.T.
Logistics, LLC (“A.C.T.”) transferred the
shipping container from the M/V MSC SOLA to a rail line. Dkt.
36 at 4. MSC SA then transported the shipping container by
rail from Long Beach, California to Houston, Texas. Dkt. 36,
4-5; Dkt. 39 at 5. Before offloading in Houston, MSC SA, or
its United States agent, Mediterranean Shipping Company (USA)
Inc. (“MSC USA”), placed a cargo lien on the
shipping container and Ziegler's household goods for
nonpayment of certain charges assessed by MSC SA or MSC USA.
Dkt. 36 at 4-5; Dkt. 39 at 5. Ziegler expected Subalipack to
pay all incidental shipping charges according to the terms of
their contract. Dkt. 36 at 7. However, when Subalipack
refused to pay for removal of the lien, Ziegler paid the
charges. Id. at 5.
arrival in Houston, Ziegler's household goods were stored
in a warehouse owned by St. George Warehouse & Trucking
Co. of Texas, Inc. (“STG”) while the goods
awaited U.S. Customs (“Customs”) importation
approval. Dkt. 36, 5-6; Dkt. 57 at 4. Zeigler alleges that he
hired an import attorney at his own expense because
Subalipack was unsuccessful in obtaining a Customs clearance
for his household goods. Dkt. 36 at 5. Zeigler's import
attorney was successful in obtaining Customs clearance, but
when his belongings were delivered to him, many items were
damaged, destroyed, or missing. Dkt. 36 at 6. It is unclear
at what point during shipment, or in the custody of which
defendant or defendants, Zeigler's property sustained
damage or went missing. However, Zeigler claims loss of or
damage to his property exceeding $78, 000. Dkt. 36 at 7.
6, 2016, Zeigler filed a complaint against Subalipack,
A.C.T., MSC USA, STG, and other parties in the 55th District
Court of Harris County, Texas. Dkt. 2-2 at 4. On August 4, 2016,
MSC USA's registered agent for service of process
received service. Dkt. 2-2 at 42. On August 26, 2016, MSC USA
removed the matter to this court on the basis of diversity
and federal question jurisdiction. Dkt. 2 at 6. On September
26, 2016, Ziegler filed a motion to remand. Dkt. 17. Ziegler
seeks remand on the following grounds: (1) the removal is
procedurally defective because MSC USA failed to obtain
consent from STG and Subalipack prior to removal (Dkt. 17 at
9-11); (2) the court cannot exercise diversity jurisdiction
because STG is a Texas entity (Dkt. 17 at 8-9); and (3) the
court cannot exercise federal subject matter jurisdiction
because the Carriage of Goods by Sea Act
(“COGSA”), the federal law that MSC USA argues
preempts Ziegler's claims, is not applicable. Dkt. 17 at
4-7. The court will address the procedural arguments first
and then turn to the jurisdictional arguments.
may remove to federal court “any civil action brought
in a State court of which the district courts of the United
States have original jurisdiction.” 28 U.S.C. §
1441 (2012). The party seeking removal bears the burden of
establishing federal jurisdiction. Willy v. Coastal
Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). This
statutory right to removal is strictly construed because
“removal jurisdiction . . . raises significant
federalism concerns.” Id. (citations omitted).
Therefore, “any doubt about the propriety of removal
must be resolved in favor of remand.” Gasch v.
Hartford Accident & Indem. Co., 491 F.3d 278, 281-82
(5th Cir. 2007).
removal statute mandates that the removing party satisfy
certain procedural requirements. 28 U.S.C. § 1446.
First, the notice of removal must be timely filed within
thirty days of service of the initial complaint upon the
removing defendant. Id. § 1446(b). Further, the
removing defendant must obtain consent from all other
“properly joined and served” defendants in the
action. Id. § 1446(b)(2)(A). Failing to obtain
such consent would “render the petition
defective” and require remand of the case to state
court. Getty Oil Corp. v. Ins. Co. of N. Am., 841
F.2d 1254, 1262 (5th Cir. 1988). However, district courts
have frequently held that removing defendants need only
obtain consent from “those defendants: (1) who have
been served; and, (2) whom the removing defendant(s) actually
knew or should have known had been served.” See,
e.g., Milstead Supply Co. v. Casualty Ins. Co.,
797 F.Supp. 569, 573 (W.D. Tex. July 31, 1992); see also
Conner v. Juarez, No. SA:15-CV-416-DAE, 2015 WL 4876530,
at *7 (W.D. Tex. Aug. 13, 2015).
Ziegler argues that MSC USA's removal was procedurally
defective because MSC USA did not obtain consent from either
STG or Subalipack for the removal. Dkt. 17 at 10. MSC USA
counters that STG and Subalipack were not properly served
before MSC USA's removal, and therefore that MSC USA was
not required to obtain the consent of either STG or
Subalipack in order to remove. Dkt. 25 at 17. MSC USA argues
that there were two defects in the service of process upon
STG and Subalipack: (1) there are no Whitney
certificates in the state court record to evidence service of
process; and (2) the record indicates that Ziegler provided
only a single copy of the processes for STG and Subalipack to
the Secretary of State, but the Texas code requires that
duplicate copies. Id. (citing Whitney);
Tex. Bus. Orgs. Code Ann. § 5.252(a)(1) (West 2006).
respect to the Whitney certificates, the Supreme
Court of Texas held in Whitney v. L.&L. Realty
Corp. that proper service on the Texas Secretary of
State requires proof of forwarding. Whitney v. L.&L.
Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973). When
service is made upon the Texas Secretary of State as an agent
for service of a foreign defendant, the Secretary of State
must forward the service to the defendant “for the
Secretary of State to be conclusively presumed to be the
attorney for the [foreign] defendant.” Id. The
Whitney court explained that “a showing in the
record that the Secretary of State forwarded a copy of the
process is essential to establish the jurisdiction of the
court over the defendants' persons.” Id.
Although Whitney involved review of a default
judgment, the critical holding of Whitney is that
service through the Texas Secretary of State is insufficient
to establish personal jurisdiction over a foreign defendant
if the record does not show that the ...