United States District Court, S.D. Texas, Houston Division
ARIELLE Y. MILLER, Plaintiff,
TARGET STORES  AND CASEY BLYTHE, Defendants.
MEMORANDUM AND RECOMMENDATION
K. JOHNSON UNITED STATES MAGISTRATE JUDGE
before the court is Plaintiff's Motion to Remand (Doc.
10). The court has considered the motion, the response, all
other relevant filings, and the applicable law. For the
reasons set forth below, the court
RECOMMENDS that Plaintiff's motion be
brings this action against Defendants Target Corporation
(“Target”) and Casey Blythe
(“Blythe”), seeking remedy for damages and
injuries sustained as a result of Defendants' negligent
actions and/or omissions. Plaintiff, a citizen of Texas,
filed this action in the 189th Judicial District
Court of Harris County, Texas, on January 11, 2019, claiming
“wrongful prosecution, negligent supervision, negligent
training, negligent supervision and retention, defamation per
se, libel per se.” Plaintiff is seeking “monetary
relief under $1, 000, 000 or less, including damages of any
kind, exemplary, penalties, court costs, expenses,
prejudgment interest, and attorney fees.”
Target was served with process on April 1, 2019,
there is no record of Defendant Blythe having been served
with process. On April 26, 2019, Defendant Target removed
this action based on diversity jurisdiction. According to the
notice of removal, the parties do not disagree about the
amount in controversy. On removal, Defendant Target represented
that it is a citizen of Minnesota and that Defendant Blythe
is a citizen of Missouri.
28, 2019, Plaintiff filed this motion to
remand.Plaintiff argues for remand by claiming
Defendant Blythe is a citizen of Texas, which if proven,
would destroy diversity of citizenship between parties and
render state court the proper venue for this
action. Furthermore, Plaintiff argues that even
if diversity jurisdiction existed at the time of removal,
Defendant Target should be barred from removing the case
because of its failure to prove it gained Defendant
Blythe's consent for removal within the first thirty days
after it was served. Lastly, Plaintiff claims that Defendant
Target failed to comply with the Local Rules on removal
procedure. On June 17, 2019, Defendants responded
in opposition to Plaintiff's motion to
jurisdictional statutes allow removal of “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(a). A defendant may remove a case in which
the amount in controversy exceeds $75, 000 and the dispute is
between citizens of different states. See 28 U.S.C.
§§ 1332, 1441. Complete diversity exists when no
plaintiff holds citizenship in the same state as any
defendant. Settlement Funding, L.L.C. v. Rapid
Settlements, Ltd., 851 F.3d 530, 536 (5th
Cir. 2017). Upon the filing of a motion to remand, the
removing party bears the burden of establishing that the
district court has jurisdiction. Mumfrey v. CVS Pharm,
Inc., 719 F.3d 392, 397 (5th Cir. 2013).
Target removed this action on the basis of diversity
jurisdiction under 28 U.S.C. § 1332. Plaintiff argues
that diversity of citizenship between herself and Defendant
Blythe does not exist and that Defendant Target failed to
comply with the procedural requirements necessary for
removal. Plaintiff's arguments are baseless.
the amount in controversy uncontested, this removal hinges on
diversity of citizenship. The removing party meets the burden
of establishing diversity jurisdiction by “distinctly
and affirmatively alleg[ing]” the citizenship of the
parties involved. Mullins v. Testamerica, Inc., 300
Fed.Appx. 259, 260 (5th Cir. 2008)(unpublished).
Here, Defendant Target has affirmatively alleged
“Defendant, Casey Blythe, at the time this action was
commenced, was, and still is, a resident and citizen of
Missouri.”Defendant Target has clearly alleged
citizenship, meeting its burden of establishing diversity
argument that Defendant Target should have to provide further
evidence of Defendant Blythe's citizenship in order to
establish diversity is unfounded. The basis for this argument
originates from Plaintiff's incorrect statement in her
motion to remand that her original petition stated that
Defendant Blythe is a citizen of Texas. No. such
assertion was made. Instead, Plaintiff asserted
“Defendant Casey Blythe may be served with process
wherever he may be found.” Defendant Target, on the
other hand, maintained from the first notice of removal that
Defendant Blythe is a citizen of Missouri,
and Defendant Target later confirmed in a filing with the
court that Defendant Blythe is a citizen of
Missouri. These representations are sufficient to
establish diversity jurisdiction, and the court finds
Plaintiff's argument that Defendant Target must provide
further evidence to be groundless.
the amount-in-controversy and diversity-of-citizenship
requirements both having been met, the court must determine
if there were any procedural defects in Defendant
Target's notice of removal. 28 U.S.C. §
1446(b)(2)(A) requires consent to removal of the action from
all defendants who have been properly joined and served.
Plaintiff contends that a remand to state court is necessary
because the thirty-day removal period passed without
Defendant Blythe consenting to Defendant Target's notice
of removal. However, as previously noted, there is
no record of service of process on Defendant Blythe.
Regardless, it is undisputed that Defendant Blythe had not
been served by the date of Defendant Target's
removal. “If a removal petition is filed by
a served defendant and another defendant is served after the
case is thus removed, the latter defendant may still either
accept the removal or exercise its right to choose the state
forum by making a motion to remand [pursuant to 28 U.S.C.
§ 1448].” Getty Oil Corp. v. Ins. Co. of N.
Am., 841 F.2d 1254, 1263 (5th Cir. 1988).
Defendant Blythe consented to removal on June 17, 2019,
but, without record of Defendant Blythe's ever being
served with process, when he consented is irrelevant.
is correct that Defendant Target failed to adhere to the
Local Rules by not attaching a copy of the state court docket
sheet to its notice of removal. The court assumes that
Defendant Target can easily remedy this defect. Defendant
Target has fourteen days to supplement its notice of removal
with a copy of the state court ...