United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs' Motion to Remand (Dkt.
#11). After reviewing the relevant pleadings and motion, the
Court finds the motion should be granted.
and Ana Maria Chavez drove West on U.S. Highway 82, in Fannin
County, Texas, a Spartan fire truck, driving East, crossed
the center line and crashed into their vehicle. As a result
of the collision, Jose and Ana died. Plaintiffs allege the
cause of the fire truck's crossing the center line
resulted from the left, front tire suffering a disablement.
As a result, on July 25, 2017, Plaintiffs filed suit in the
336th Judicial Court of Fannin County, Texas. Specifically,
Plaintiffs filed suit against the alleged previous owners of
the fire truck, North Shore Fire Department (“North
Shore”) and William Shane Tackett
(“Tackett”), the fire truck's operator,
Christopher Nelson (“Nelson”), and the fire
truck's tire manufacturer, Goodyear Tire & Rubber
citizenship of the parties is not in dispute. Plaintiffs are
all Texas citizens. Goodyear, an Ohio corporation with its
principal place of business in Akron, Ohio, is an Ohio
citizen. Nelson is an Arkansas citizen. North Shore is a
Texas citizen. Tackett is a Texas citizen.
October 5, 2017, Goodyear filed its Notice of Removal (Dkt.
#1) alleging that complete diversity exists among the real
parties in interest and that the amount in controversy
exceeds $75, 000, exclusive of interest and costs. On
November 6, 2017, Plaintiffs filed their Motion for Remand
(Dkt. #11), and on November 20, 2017, Goodyear filed its
response (Dkt. #12). Plaintiffs filed their reply (Dkt. #13)
on November 27, 2017. Goodyear filed its sur-reply (Dkt. #16)
on December 5, 2017.
defendant may remove any civil action from state court to a
district court of the United States which has original
jurisdiction. 28 U.S.C. § 1441. District courts have
original jurisdiction over all civil actions that are between
citizens of different states and involve an amount in
controversy in excess of $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(a). The party seeking removal
“bears the burden of establishing that federal
jurisdiction exists and that removal was proper.”
Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002). The removal statute must
“be strictly construed, and 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). A
district court is required to remand the case to state court
if, at any time before final judgment, it determines that it
lacks subject matter jurisdiction. See 28 U.S.C.
§ 1447(c); Groupo Dataflux v. Atlas Glob. Grp.,
L.P., 541 U.S. 567, 571 (2004).
avers jurisdiction is proper because complete diversity
exists between the real parties in interest. In making this
argument, Goodyear claims that Plaintiffs improperly joined
non-diverse Defendants North Shore and Tackett, thus, their
citizenship should be irrelevant for jurisdictional purposes.
Further, Goodyear contends that although Nelson is diverse he
is also an improperly joined defendant. As a result, Goodyear
claims that Nelson's consent to remove the case, as
required by 28 U.S.C. § 1446(b)(2)(A), is unnecessary.
Plaintiffs asserts remand is appropriate because both Tackett
and Nelson are properly joined defendants. As such,
Plaintiffs argue remand is appropriate.
the issues before the Court are whether Nelson and Tackett
are properly joined defendants, the Court finds it is only
necessary to address whether Goodyear's failure to obtain
Nelson's consent is excusable.
Failure to Obtain Nelson's Consent
argues that because Plaintiffs improperly joined Nelson as a
defendant, Nelson's consent to remove is unnecessary. The
a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join
in or consent to the removal of the action.” 28 U.S.C.
§ 1446(b)(2)(A). This rule is sometimes referred to as
the “rule of unanimity” or “unanimity of
consent rule.” Breitling v. LNV Corp., 86
F.Supp.3d 564, 569 (N.D. Tex. 2015). When a defendant removes
from state court to federal court, the removing defendant
“bear[s] the burden of establishing compliance with the
rule of unanimity, either by showing that all properly joined
and served defendants consent to removal or by establishing
that a named defendant's consent to removal is not
required.” Id. at 570. Exceptions to the
unanimity rule include: (1) “where the non-consenting
defendant was not yet served with process at the time the
removal petition was filed;” (2) “where a
defendant is merely a nominal, unnecessary, or formal
party-defendant;” and (3) “where the removed
claim is a separate and independent claim ...