Brigham v. Pennywise RV Sales Service, Inc.

Full title: CHARLES P. BRIGHAM, SR., ET AL. v. PENNYWISE RV SALES SERVICE, INC., ET AL

Court: United States District Court, W.D. Louisiana, Shreveport Division

Date published: Feb 16, 2005

CIVIL ACTION NO. 05-0006 (W.D. La. Feb. 16, 2005)

Opinion

Civil Action No. 05-0006.

February 16, 2005

MEMORANDUM RULING

MARK L. HORNSBY, Magistrate Judge

Before the court is Plaintiffs' Motion to Remand (Doc. 5) filed on filed on January 12, 2005. The removing Defendant, Gulf Stream Coach, Inc. filed its opposition (Doc. 9) to the motion on January 28, 2005. For the reasons that follow, and subject to the stay set forth in the accompanying order, the Motion to Remand will be granted.

Introduction

This is a suit seeking rescission of the sale of an allegedly defective motor home. Alternatively, Plaintiffs seek a reduction of the purpose price. Plaintiffs further seek an award of pecuniary and non-pecuniary damages.

The defendants are Pennywise RV Sales Service, Inc. ("Pennywise"), Gulfstream Coach, Inc. ("Gulfstream"), Ford Motor Company, Inc. ("Ford"), and Banc of America Specialty Finance, Inc. ("BOA").

Suit was filed on December 3, 2004 and removed to this Court by Gulfstream on January 3, 2005. Gulfstream claims in its notice of removal that there is complete diversity of citizenship and the amount in controversy exceeds $75,000.00.

Plaintiff argues removal was improper because: (1) the consent of all defendants was not obtained; and (2) the amount in question does not exceed $75,000.00.

Analysis

Citizenship of the Parties

To plead diversity properly, the removing party must allege with specificity both the state of incorporation and the state where the corporate party maintains its principal place of business. Illinois Central Gulf Railroad Company v. Pargas, Inc., 706 F.2d 633, 637 (5^th Cir. 1983); Nadler v. American Motors Sales Corp., 764 F.2d 409, 412-413 (5^th Cir. 1985). When the removing party fails to allege either fact, "the pleadings are inadequate to establish diversity." Joiner v. Diamond M Drilling Co., 677 F.2d 1035, 1039 (5th Cir. 1982). The Fifth Circuit requires strict adherence to these straightforward rules. Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001); Getty Oil Corp. v. Insurance Company of North America, 841 F.2d 1254, 1259 (5th Cir. 1988).

The court notes sua sponte that Gulfstream failed to allege properly its own corporate citizenship and the citizenship of the other corporate defendants. Specifically, there is no reference in the Notice of Removal to the principal place of business of any of the corporate defendants. Simply alleging that the defendants are "foreign corporations authorized and existing" under another state's laws is not sufficient. Accordingly, Gulfstream failed to meet the standard for pleading citizenship required in this circuit.

Amount in Controversy

The removing party also bears the burden of satisfying the court by a preponderance of the evidence that the amount in controversy exceeds $75,000.00. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 881 (5^th Cir. 2000). It is not apparent on the face of the petition that more than $75,000.00 is in controversy, and Gulfstream did not set forth any facts in its Notice of Removal to attempt to meet this burden. Luckett v. Delta Airlines, 171 F.3d 295, 298 (5^th Cir. 1999); Simon v. Wal-Mart, 193 F.3d 848 (5^th Cir. 1999). Gulfstream's conclusory assertion that the matter in controversy exceeds $75,000.00 is insufficient as a matter of law. Allen v. RH Oil Gas Co., 63 F.3d 1326, 1335 (5^th Cir. 1995) (removal cannot be based on conclusory allegations regarding the amount in controversy). This is especially true here, when Plaintiffs' motion to remand represents that the price of the motor home at issue was only $44,927.00.

Consent of All Defendants

It is well settled that all served defendants must join in a notice of removal. Doe v. Kerrwood, 969 F.2d 165, 167 (5^th Cir. 1992); White v. White, 32 F.Supp.2d 890, 892-893 (W.D. La. 1998). In this case, none of the other defendants joined with Gulfstream in the removal, and Gulfstream made no allegations whatsoever in its Notice of Removal that any other defendant consented to the removal or that consent was unnecessary. One of the "green cards" from Plaintiffs' service of the lawsuit via the Louisiana long-arm statute shows Pennywise was served on December 16, 2004. Gulfstream's Notice of Removal is dated January 3, 2005. Ford served its answer to the lawsuit on January 7, 2005 (certificate of service). However, the court cannot determine from the record exactly when Ford was served, although the date of the certificate of service attached to Ford's answer strongly indicates Ford was served before removal.

Failure to obtain the consent of the other defendants is a defect in the removal proceeding, and Gulfstream has failed to meet its burden of showing that some exception to the joinder rule applies. Dodson v. Spiliada Maritime Corp., 951 F.2d 40,42 (5^th Cir. 1992) (removing party bears burden of proving federal jurisdiction); Acuna v. Brown Root, 200 F.3d 335, 339 (5^th Cir. 2000) (doubts concerning removal jurisdiction should be resolved against federal jurisdiction).

Based on the foregoing, Plaintiffs' Motion to Remand will be granted and this case will be remanded to state court.

Attorneys Fees

If at any time it appears that the court lacks subject matter jurisdiction, the case must be remanded. 28 U.S.C. § 1447(c). As set forth above, the court undoubtedly lacks subject matter jurisdiction in this case. The order remanding the case "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Id. A court has discretion to award fees under the statute if it finds that the decision to remove was legally improper. Miranti v. Lee, 3 F.3d 925, 929 (5th Cir. 1993). That finding has been made, so the court may award the "fees and costs incurred in federal court that would not have been incurred had the case remained in state court."Avitts v. Amoco, 111 F.3d 30, 32 (5th Cir. 1997).

The removal of this case was defective on a number of levels; therefore, the court finds an award of attorneys fees and costs is appropriate. Within thirty (30) days of the remand of this case to state court by the Clerk of Court of this court, Gulf Stream is ordered to pay Plaintiffs the sum of $500.00. While this is less than the sum requested by Plaintiffs, the court believes it is sufficient under the circumstances.