United States District Court, S.D. Mississippi, Western Division
ORDER AND OPINION
BRAMLETTE UNITED STATES DISTRICT JUDGE
cause is before the Court on plaintiff Pike County,
Mississippi (“Pike County”)'s Motion to
Remand (docket entry 2), defendant CMS Consultants, LLC
(“CMS”)'s Objection to Removal and Joinder in
Motion to Remand (docket entry 8). Having carefully
considered the motions, responses, and applicable law, and
being otherwise fully informed in the premises, the Court
finds as follows:
case is one in a series of litigation arising out of the
construction of a workforce housing facility in the Gateway
Industrial Park at Fernwood in Pike County,
Mississippi. On July 25, 2014, defendants CMS and Aries
entered into a contract for the construction of the
“workers' lodge, ” and pursuant to that
contract, CMS claims to have provided goods and services to
Aries in the amount of $1, 529, 862.33. Doc. 1-1, p.2.
According to CMS, Aries has paid only $715, 016.03, leaving
an unpaid balance of $814, 846.30. Id. CMS filed a
construction and materialman's lien on the property in
the amount of $282, 632.44, which it seeks to enforce in a
separate state court action filed in the Chancery Court of
Pike County. Id.
to the filing of the CMS lien, Pike County executed and
delivered a Warranty Deed conveying a 40-acre tract of
property located within the Gateway Industrial Park to Aries.
Id. The Warranty Deed provided that Pike County
would have the option to repurchase the 40-acre tract in the
event that Aries failed to comply with certain conditions set
forth in the agreement. Pike County alleges that Aries has
defaulted on its contractual obligations and claims that the
County is entitled to repurchase the property for the
original purchase price of $480, 000. Id.
January 25, 2017, Pike County filed its Complaint for Leave
to Interplead, for Specific Performance, and for General
Relief in the Chancery Court of Pike County, Mississippi.
Pike County's Complaint seeks interpleader in the amount
of $480, 000 to avoid the possibility of multiple liability
which could result from an adverse determination regarding
the amount owed by Aries under the CMS contract. The
Complaint also requests an order compelling Aries to comply
with the County's right to repurchase the 40-acre tract,
along with an order canceling the CMS construction lien and
directing Aries to pay CMS the amount owed.
filed its Notice of Removal on February 3, 2017. See Doc. 1.
Pike County filed a motion to remand on February 23, 2017,
and CMS filed an Objection to Removal and Joinder in Motion
to Remand shortly thereafter on March 16, 2017. See Docs. 2,
28 U.S.C. § 1441(a), “any civil action brought in
a State court of which the district courts of the United
States have original jurisdiction, may be removed . . . to
the district court of the United States for the district and
division embracing the place where such action is
pending.” The removing party bears the burden of
showing that federal jurisdiction exists and that removal was
proper. Manguno v. Prudential Prop. & Cas. Ins.
Co. 276 F.3d 720, 723 (5th Cir. 2002). Because removal
implicates significant federalism concerns, the removal
statute is to be strictly construed, and any doubts or
ambiguities are resolved in favor of remand. Gutierrez v.
Flores, 543 F.3d 248, 251 (5th Cir. 2008).
County moves to remand under 28 U.S.C. § 1447(c),
arguing that removal was procedurally defective because
defendant CMS did not join in or consent to Aries's
Notice of Removal. The rule of unanimity, as codified by 28
U.S.C. § 1446(b)(2)(A), requires that “when 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.” When
multiple defendants are involved, each defendant “shall
have 30 days after receipt by or service on that defendant of
the initial pleading or summons ... to file the notice of
removal.” 28 U.S.C. § 1446(b)(2)(B); Andrews
v. Miss. Farm Bureau Cas. Ins. Co., 187 F.Supp.3d 749,
755 (S.D.Miss. 2016) (recognizing a shift from the Fifth
Circuit's traditional first-served defendant rule
following a 2011 amendment to 28 U.S.C. § 1446); but see
Faulkner v. Miss. Dept. of Human Services, 2016 WL
3661521 (S.D.Miss. July 5, 2016) (citing the traditional
first-served defendant rule). Failure to obtain the consent
of all served defendants within the removal period renders
removal procedurally defective. Doe v. Kerwood, 969
F.2d 165, 167, 169 (5th Cir. 1992); see Harden v. Field
Memorial Community Hosp., 516 F.Supp.2d 600, 607
(S.D.Miss. 2007) (“district courts have no power to
overlook procedural errors relating to the notice of
removal”); Spillers v. Tillman, 959 F.Supp.
364, 368 (S.D.Miss. 1997) (“defective removal procedure
is a proper ground for remand”).
discussing the rule of unanimity, the Fifth Circuit has held
that consent to removal is not required from: (1) improperly
or fraudulently joined parties, see Jernigan v. Ashland
Oil Inc., 989 F.2d 812 (5th Cir. 2003); (2) nominal or
unnecessary defendants, see Farias v. Bexar Co. Bd.
of Trustees for Mental Health Mental Retardation Services,
925 F.2d 866 (5th Cir. 1991); and (3) defendants who have not
been served by the time of removal, see Jones v. Houston
Indep. Sch. Dist., 979 F.2d 1004, 1007 (5th Cir. 1992).
Jones v. Watts, 2011 WL 2160915 (S.D.Miss. June 1,
2011). Relying on the first and third articulated exceptions
to the rule, Aries maintains that CMS's consent is
unnecessary because the defendant was not properly joined or
improper joinder, Aries's argument appears to be
misplaced. Improper joinder functions as a narrow exception
to the rule of complete diversity. Campbell v. Stone
Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007). To
establish improper joinder, the removing party, must show
either: “(1) actual fraud in the pleading of
jurisdictional facts, or (2) inability of the plaintiff to
establish a cause of action against the non-diverse party in
state court.” Travis v. Irby, 326 F.3d 644,
647 (5th Cir. 2003). Aries appears to take the second
approach, arguing that Pike County's interpleader action
must fail because CMS's underlying state court claim is
without hope of success. Aries claims that CMS was joined in
this action for the sole purpose of defeating diversity, but
the defendant has not alleged, nor do the facts suggest, that
CMS is a non-diverse party whose presence would defeat
diversity. As the Fifth Circuit observed in dicta in
Smallwood v. Illinois Cent. R. Co., 385 F.3d 568
(5th Cir. 2004), “a claim of improper joinder is by
definition directed toward the joinder of an in-state
party.” The Court is unconvinced that the improper
joinder analysis is relevant absent some non-diverse party.
Nevertheless, the Court need not reach the issue, as it
appears that CMS's consent to removal was unnecessary
under the unserved defendant exception.
the unserved defendant rule, Aries argues that removal was
procedurally proper because CMS has not been served in this
case. “Defendants . . . who are unserved when the
removal petition is filed need not join in it.” Getty
Oil, 841 F.2d at 1261, n.9; see Hanks v. Porter,
2012 WL 5512332 (S.D.Miss. Nov. 14, 2012) (finding that a
defendant's unilateral removal was acceptable because
“at the time there were no other served defendants
required to consent to removal”); Tilley v.
Tisdale,914 F.Supp.2d 846, 850 (E.D. Tex. 2012)
(“a defendant who has not been properly served need not
consent to removal”). Aries removed the case on
February 3, 2017, and the parties agree that defendant CMS
was not served with process prior to removal. It appears that
Pike County attempted service on CMS via certified mail, but
service was unsuccessful. See Doc. 13-1. Since CMS was not
served, Aries's Notice of Removal is not procedurally
defective based on CMS's failure to join the petition.
See Williams ex rel. Williams v. ...