United States District Court, N.D. Texas, Dallas Division
PARTNERSHIP, LLC and FREIGHT STAR, INC.
MEMORANDUM OPINION AND ORDER
GREN SCHOLER UNITED STATES DISTRICT JUDGE
Order concerns Plaintiff SkyGlass, Inc.'s
("Plaintiff') Motion to Remand [ECF No. 14]. For the
reasons that follow, the Court grants in part and denies in
part the Motion.
PartnerShip, LLC ("PartnerShip") removed the
above-captioned action on May 7, 2019, based on diversity and
federal question jurisdiction. See Notice of Removal
¶¶ 5-18. PartnerShip claimed that
Plaintiff sought monetary relief in excess of $100, 000 and
that complete diversity existed between the patties:
Plaintiff is a Texas corporation with its principal place of
business in Texas; PartnerShip is an Ohio limited liability
company, and its sole member is an Ohio corporation whose
principal place of business in Ohio; and, Defendant Freight
Star, Inc. ("Freight Star") is an
Ohio corporation with its principal place of business in
Ohio. Id. ¶¶ 6-8.
PartnerShip further pleaded that Plaintiffs action involved a
federal question because it implicated the Interstate
Commerce Commission Termination Act, 49 U.S.C. § 14501,
and the Carmack Amendment, 49 U.S.C. § 14706.
Id. ¶¶ 12-18.
PartnerShip, however, did not obtain Freight Star's
consent before removing the action, stating that Freight Star
"has not filed an Answer .., or otherwise appeared in
the" state court action. Id. , 4. On May 23,
2019, Plaintiff filed an Amended Complaint that included
allegations under the Cannack Amendment, see First
Am. Comp!. ¶¶ 17-18, and "reserved the
right... to either contest jurisdiction or contend that the
removal procedure utilized in this case was improper."
Id. at 1 n.l. Plaintiff filed its Motion to Remand
on May 31, 2019, which is now fully briefed before this
defendant may remove a civil action filed in state court to
federal court if the district court has original
jurisdiction. 28 U.S.C. § 1441(a). The removing party
bears the burden of establishing jurisdiction and compliance
with the requirements of the removal statute. Shearer v.
Sw. Serv. Life. Ins., 516 F.3d 276, 278 (5th Cir. 2008).
The Court must resolve all "doubts regarding whether
removal jurisdiction is proper . . . against federal
jurisdiction." Acuna v. Brown & Root Inc.,
200 F.3d 335, 339 (5th Cir. 2000) (citations omitted).
Additionally, the Court must strictly construe removal
statutes "against removal and for remand."
Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th
Cir. 2002) (quoting Eastus v. Blue Bell Creameries,
L.P., 97 F.3d 100, 106 (5th Cir. 1996)).
removal statute has been interpreted to require that all
defendants properly joined and served at the time of removal
consent to the notice of removal, Rico v. Flores,
481 F.3d 234, 239 (5th Cir. 2007) (quoting Getty Oil
Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 (5th
Cir. 1988)). This is commonly known as the "unanimity
rule," "unanimity of consent rule," or the
"unanimous consent rule," See Ortiz v.
Young, 431 Fed.Appx. 306, 307 (5th Cir. 2011) (referring
to "unanimity of consent rule" (citation omitted));
Acosta v. Master Maint & Constr. Inc., 452 F.3d
373, 375 (5th Cir.2006) (referring to "unanimity
rule"); Doe v. Kerwood, 969 F.2d 165, 169 (5th
Cir. 1992) (referring to "unanimous consent rule").
Motion to Remand
argues that this case should be remanded because Freight Star
did not consent to the removal. Plaintiff is correct that
"28 U.S.C. § 1446(a) requires that all defendants
join in a petition for removal," and that remand is
appropriate when one defendant does not consent to the
removal. Ortiz, 431 Fed.Appx. at 307 (first citing
Tri-Cities Newspapers, Inc. v. Tri-Cities Printing
Pressmen & Assistants' Local 349, 427 F.2d 325,
326-27 (5th Cir. 1970); and then citing Kerwood, 969
F.2d at 169). Defendants respond that the Court should
disregard Freight Star's lack of consent because: (1) the
action was removed on the basis of federal question
jurisdiction; (2) Freight Star was not served; (3)
Partnership did not know that Freight Star was served; (4)
the extraordinary circumstances of this case warrant the
Court upholding removal; and (5) Plaintiff waived its right
to remand. For the reasons that follow, the Court disagrees
with these arguments and remands the action to state court.
Federal Question Jurisdiction
a civil action is removed solely under 28 U.S.C. §
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). Section 1441(a),
in turn, authorizes removal of any civil action brought in a
state court to the federal court, if the federal court would
have original jurisdiction over that dispute. See 28
U.S.C. § 1441(a). The term "solely" in Section
1446(b)(2) is intended to distinguish cases that are removed
on the basis of § 1441(a) from those that are removed
under another removal statute. See Penson Fin. Servs.,
Inc. v. Golden Summit Inv'rs Grp., Ltd., Civ. A. No.
3:12-CV-300-B, 2012 WL 2680667, at *5 (N.D. Tex. July 5,
2012) (collecting statutes). Thus, in cases removed on the
basis of diversity or federal question jurisdiction, all
defendants must consent to removal unless a statute other
than § 1441 authorizes the removal without one
Partnership suggests that 28 U.S.C. § 1337 or 49 U.S.C.
§ 14706(d) authorizes removal without consent. The Court
disagrees. Section 1337 provides that "district courts
shall have original jurisdiction of any civil action or
proceeding arising under any Act of Congress regulating
commerce or protecting trade and commerce," but does not
provide an independent basis for removal. 28 U.S.C. §
1337(a). Similarly, § 14706(d) provides that "[a]
civil action under this section may be brought
against a delivering carrier in a [U.S.] district
court," but does not independently authorize removal of
such actions. 49 U.S.C, § 14706(d) (emphasis added). In
fact, Partnership's notice of removal relied solely on 28
U.S.C. § 1446 and did not identify any other statute
authorizing removal of the action, See Notice of
Removal ¶¶ 19-21. Thus, Partnership has not
suggested any statute that would authorize removal without
Freight Star's consent, and the Court has found none.
Accordingly, the Court finds that Freight Star needed to
consent to the removal even if Partnership removed on the
basis of federal question jurisdiction.