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SkyGlass Inc v. PartnerShip, LLC

United States District Court, N.D. Texas, Dallas Division

August 14, 2019

SKYGLASS, INC.
v.
PARTNERSHIP, LLC and FREIGHT STAR, INC.

          MEMORANDUM OPINION AND ORDER

          KAREN GREN SCHOLER UNITED STATES DISTRICT JUDGE

         This 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.

         I. BACKGROUND

         Defendant 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 Court.[1]

         II. LEGAL STANDARD

         A 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)).

         The 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").

         III. ANALYSIS

         A. Motion to Remand

         Plaintiff 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.

         (1) Federal Question Jurisdiction

         "When 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 defendant's consent.

         Here, 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.

         (2) ...


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