United States District Court, S.D. Mississippi, Southern Division
CHARLES E. CHAPMAN, ET AL. PLAINTIFFS
REVCLAIMS, LLC, ET AL. DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS'
MOTION  TO REMAND
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Plaintiffs Charles E. Chapman, Margaret L.
Chapman, and Alexander C. Chapman's Motion  to Remand.
This Motion is fully briefed. The Court, having considered
the pleadings on file, the record as a whole, and relevant
legal authority, finds that because there was a procedural
defect in the removal of this case, remand is required.
FACTS AND PROCEDURAL HISTORY
case arises out of “catastrophic injuries”
suffered by Plaintiff Alexander C. Chapman
(“Alexander”), a minor at the time, in an
automobile accident that occurred on May 26, 2014, in the
State of Louisiana. Am. Compl. [1-2] at 6. On July 18, 2014,
an Order Appointing Co-Guardians and Granting Other Relief
was entered in the Chancery Court of Harrison County,
Mississippi, First Judicial District, Case Number
24CH1:14cv1815-JP, appointing Plaintiffs Charles E. Chapman
and Margret L. Chapman (“Plaintiffs”) Guardians
of Plaintiff A.C.C. State Court Record  at 17-20. The Order
granted the Chapmans the authority to retain counsel and
“to take such action and seek relief and recovery of
damages, benefits and such other remedies which may accrue
for said Minor Child's injuries, losses, disabilities and
damages.” Id. at 18. Plaintiffs filed suit in
the United States District Court for the Eastern District of
Louisiana against “third parties” and on or
around November 18, 2015, settled these claims. Notice of
Removal  at 4.
February 13, 2017, Plaintiffs filed an Amended Complaint for
Interpleader, Injunctive and Other Relief in the Chancery
Court case. Am. Compl. [1-2] at 4-27. Plaintiffs named
RevClaims, LLC, Memorial Hospital at Gulfport, United Health
Care Services, Inc., OPTUM, Lowe's Welfare Plan, and John
Does 1-5 as Defendants. Plaintiffs tendered $167, 511.89 into
the registry of the Chancery Court and sought a judicial
determination of whether any of Defendants held a valid claim
to the any of the interpleaded funds, and if not sought
return of the funds to Plaintiffs. Id. Plaintiffs
filed a Second Amended Complaint on March 7, 2017. State
Court Record  at 64-91.
United Health Care, Inc., OPTUM, and Lowe's Welfare Plan
(“Removal Defendants”) removed the case to this
Court on March 15, 2017, invoking federal question
jurisdiction under 28 U.S.C. § 1441(a), specifically,
claims under the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001, et seq. (“ERISA”).
Notice of Removal  at 1-7. The Notice of Removal asserts
that OPTUM was served on February 14, 2017, and was the first
Defendant to be served. Id. at 2. The Removal
Defendants stated that they “procured the consent of
each of the other defendants in this lawsuit to this
filed a Motion  to Remand arguing that the Removal was
procedurally defective, including the failure of all
Defendants to file written joinders or written consent to the
removal, and that ERISA does not preempt their Chancery Court
Interpleader case. Mot. to Remand  at 1-4.
Removal Defendants filed a Response  maintaining that
removal was proper because each Defendant that had been
served with process consented to the removal, Resp. in
Opp'n  at 2-3, and that the Notice of Removal
contained a “short plain statement demonstrating
entitlement to this removal, ” id. at 4. The
Removal Defendants contend that Plaintiffs' claims for
“unjust enrichment” are preempted by ERISA and
thus removable, citing as authority Carducci v. Aetna
U.S. Healthcare, 204 F.Supp.2d 796 (D.N.J. 2002).
The Removal Procedure
U.S.C. § 1441(a) provides for the removal of civil
actions brought in a state court of which the district courts
have original jurisdiction. 28 U.S.C. § 1441(a). Section
1446 sets forth the procedure for removing a civil action to
(a) Generally.C A defendant or defendants desiring to remove
any civil action from a State court shall file in the
district court of the United States for the district and
division within which such action is pending a notice of
removal signed pursuant to Rule 11 of the Federal Rules of
Civil Procedure and containing a short and plain statement of
the grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action.
(b) Requirements; Generally.C
(2) (A) When a civil action is removed solely under section
1441(a), all defendants who have been properly joined and
served must join in or ...