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Hammett v. FCA US LLC

United States District Court, N.D. Texas, Fort Worth Division

September 7, 2017

LARRY HAMMETT, et al., Plaintiffs,
v.
FCA U.S. LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE, UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of plaintiffs, Larry Hamraett ("Larry") and Patricia Hammett, to remand. The court, having considered the motion, the response of defendant, FCA U.S. LLC, the record, and applicable authorities, finds that the motion should be granted.

         I.

         Background

         On January 12, 2017, plaintiffs filed their original petition in the 266th Judicial District Court of Erath County, Texas, naming FCA U.S. LLC ("FCA") and ZF North America, Inc. ("ZF") as defendants. They alleged: On or around November 17, 2015, a defective 2015 Jeep Grand Cherokee designed, tested, marketed, distributed, and sold by FCA and ZF injured Larry when it suddenly rolled backward, running over his foot, ankle, and left side. Specifically, they alleged that the defect was in the monostable electronic “E-shift" gear shift assembly.

         On July 18, 2017, PCA filed its notice of removal, bringing the action before this court. FCA claimed that the removal was timely in that it was filed within thirty days of the dismissal of plaintiffs' claims against ZF, which had earlier refused to consent to removal. Removal was based on diversity under 28 U.S.C. § 1332(a).

         II.

         Ground of the Motion

         Plaintiffs assert that the removal was not timely inasmuch as the action was removable at the time of service of plaintiffs' original petition.

         III.

         Applicable Legal Standard

         "The notice of removal of a civil action or proceeding shall be filed within 3 0 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief ., ." 28 U.S.C. §1446(b)(1). Removal is improper unless all defendants who have been properly joined and served join in or consent to the removal. 28 U.S.C. §1446(b)(2)(A). If a defendant cannot convince his co-defendants to join in or consent to the removal, "he's stuck in state court." Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9thCir. 2006).[1]

         Only if the case stated by the original pleading is not removable may a notice of removal be filed within 3 0 days after receipt by the defendant of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained ...


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