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Stoltz v. River Oaks Management, Inc.

United States District Court, S.D. Mississippi, Southern Division

October 31, 2014

ERNEST LOUIS STOLTZ, Plaintiff,
v.
RIVER OAKS MANAGEMENT, INC., TJWIII, LLC, and T. JERARD WARD GENERAL CONTRACTORSM INC., ABC, INC., JASON S. WARD and THOMAS JERARD WARD Defendants.

ORDER DENYING PLAINTIFF'S MOTION TO REMAND

HALIL SULEYMAN OZERDEN, District Judge.

BEFORE THE COURT is Plaintiff Ernest Louis Stoltz's Motion to Remand [5] filed on June 25, 2014. Defendants River Oaks Management, Inc., TJWIII, LLC, T. Jerard Ward General Contractors, Inc., Jason S. Ward, and Thomas Jerard Ward filed their Response [10] on July 21, 2014. Plaintiff did not file a rebuttal. Having considered the parties' submissions, the record, and relevant legal authorities, the Court concludes that Plaintiff's Motion should be denied.

I. BACKGROUND

Plaintiff Ernest Louis Stoltz ("Plaintiff") filed this lawsuit in the Circuit Court of Harrison County, Mississippi, Second Judicial District, on April 29, 2014, alleging that he was paralyzed after suffering severe injuries while attempting to repair an air conditioning unit at Madison Apartments in Biloxi, Mississippi, which is owned by Defendant TJWIII, LLC, and managed by Plaintiff's employer, Defendant River Oaks Management, Inc. ("River Oaks"). Compl. 2-3 [1-2]. Defendants River Oaks, TJWIII, LLC, T. Jerard Ward General Contractors, Inc. ("TJWGC, Inc."), Jason S. Ward, and Thomas Jerard Ward (collectively "Defendants") removed the case to this Court on June 12, 2014, on the basis of diversity jurisdiction. Notice of Removal 2 [1]. Plaintiff now seeks remand arguing that all Defendants did not consent to removal and that diversity of citizenship does not exist between Plaintiff and TJWIII, LLC, and TJWGC, Inc. Mem. in Supp. of Mot. to Remand 2-6 [6].

II. DISCUSSION

A. Legal Standard

28 U.S.C. § 1441 provides for the removal of civil actions brought in a state court of which the federal district courts have original jurisdiction. The parties seeking removal bear the burden of establishing federal jurisdiction and showing that removal is procedurally proper. Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005). When a civil action is removed on the basis of diversity jurisdiction, the matter in controversy must exceed the sum of $75, 000.00 and be between citizens of different states. 28 U.S.C. § 1332(a)(1) (2012). "In making a jurisdictional assessment, a federal court is not limited to the pleadings; it may look to any record evidence, and may receive affidavits, deposition testimony or live testimony concerning the facts underlying the citizenship of the parties." Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996) (citations omitted).

B. Analysis

In their Notice of Removal [1], Defendants allege that they are each citizens of the State of Louisiana and that Plaintiff is a citizen of the State of Mississippi. Defendants also assert that Plaintiff seeks damages in excess of $75, 000.00. Notice of Removal 3 [1]. Plaintiff does not dispute that the amount in controversy is satisfied, that he is a citizen of the State of Mississippi, or that River Oaks, Jason S. Ward, or Thomas Jerard Ward are citizens of the State of Louisiana. Mem. in Supp. of Mot. to Remand 1-6 [6]. Plaintiff instead claims that River Oaks did not consent to removal because, one day after the Notice of Removal was filed, a second attorney unrelated to the law firm which filed the Notice of Removal on behalf of all Defendants sought leave on River Oaks' behalf for additional time to respond to the Complaint in the Circuit Court of Harrison County.[1] Id. at 2. Plaintiff also contends that TJWGC, Inc., and TJWIII, LLC, may be considered citizens of the State of Mississippi, thereby destroying diversity of citizenship. Id. at 2-6.

1. The Removal was Unanimous

To the extent that Plaintiff seeks remand based on the absence of consent to removal by River Oaks, Plaintiff's argument cannot succeed. All Defendants are not required to sign the Notice of Removal, but there must be some "timely filed written indication... from some person or entity purporting to formally act on [each Defendants'] behalf in this respect and to have authority to do so, that [each Defendant] has actually consented" to removal. Getty Oil, Div. of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1262 n.11 (5th Cir. 1988). Plaintiff argues that the "attorneys representing River Oaks" did not each join in the removal and that River Oaks has filed "inconsistent pleadings." Mot. to Remand 2 [5]; Mem. in Supp. of Mot. to Remand 2 [6].

The Notice of Removal, however, was signed by the attorney who represents each Defendant and makes plain that each Defendant consents to the removal. See, e.g., Nixon v. Wheatley, 368 F.Supp.2d 635, 639 (E.D. Tex. 2005) (reasoning remand would not be appropriate where single counsel representing both defendants undisputedly had authority to remove on their behalf notwithstanding the fact that both defendants did not actually sign the notice of removal or a separate consent form) (citing Getty, 841 F.2d at 1262 n.11); Phillips v. Offshore Logistics, 785 F.Supp. 1241, 1242 n.1 (S.D. Tex. 1992) (rejecting argument that case should be remanded because all the defendants did not properly join in the removal where the notice of removal stated that all defendants joined and was signed by counsel for all defendants). The fact that another attorney subsequently sought additional time to respond to the Complaint in state court does not create "inconsistent pleadings" because upon removal, the state court was to "proceed no further" and was without jurisdiction. See 28 U.S.C. 1446(d) (2012); Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962) ("Upon the filing of a proper petition for removal and upon compliance with the applicable statutes, the state court loses jurisdiction...."). Plaintiff's Motion [5] should be denied to the extent it seeks remand based on a purported lack of consent to removal by River Oaks.

2. TJWGC, Inc., is a Citizen of the State of Louisiana

A corporation is a citizen of the state of its incorporation and the state of its principal place of business. 28 U.S.C. § 1332(c)(1) (2012). By reason of its incorporation, TJWGC, Inc., is a citizen of the State of Louisiana. Aff. of Jason Ward ¶ 5 [10-1]. The Court must now determine if there is sufficient proof that ...


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