Opinion
Civil Action No. 05-1461, SECTION "N" (3).
May 27, 2005
ORDER AND REASONS
Before the Court is the Motion to Remand filed by Plaintiff Paul Sciortino. See Civ. A. No. 04-1125 (Rec.Doc. No. 71). For the reasons that follow, Plaintiff's motion is GRANTED.
I. BACKGROUND
On or about April 4, 2005, Plaintiff Paul Sciortino filed a Petition for Damages against Defendants National Railroad Passenger Corporation, d/b/a Amtrak ("Amtrak") and Canadian National/Illinois Central Railroad Company ("CN/IC") in the Civil District Court for the Parish of Orleans, State of Louisiana. The incident which forms the basis of this action is an April 6, 2004 derailment of the railroad passenger train City of New Orleans No. 58, on which Plaintiff Paul Sciortino and his minor son Stephen Sciortino allegedly were passengers.
On April 11, 2005, service was perfected on Amtrak through the Louisiana Long Arm Statute. See Copy of Return of Receipt (Pl.'s Ex. "A"). On April 13, 2005, service was perfected on CN/IC through its registered agent for service of process. See Copy of Return Receipt (Pl.'s Ex. "B"). On April 19, 2005, Amtrak removed the action to this Court. See Notice of Removal (Rec. Doc. No. 1). In support of removal, Amtrak alleged that this Court has original jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 and 1349, and that the action is one which may be removed pursuant to 28 U.S.C. § 1441.
On May 16, 2005, Plaintiff timely filed the Motion to Remand that is now before the Court. The crux of the Plaintiff's motion is that remand is warranted because Defendant Amtrak did not follow the procedural requirements for removal.
II. LAW AND ARGUMENT
Upon a timely motion for remand, a federal district court must remand a case if one of the statutory requirements for removal has not been satisfied. Thompson v. Louisville Ladder Corp., 835 F.Supp. 336, 339-40 (E.D.Tex. 1993). The procedures governing removal are set forth at 28 U.S.C. § 1446. Section 1446(b) provides that "[t]he notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . ." 28 U.S.C. § 1446(b).
In cases involving multiple defendants, courts have interpreted the latter provision to require all served defendants to join in the removal. Johnson v. Helmerich Payne, Inc., 892 F.2d 422, 423 (5th Cir. 1990). Further, the rule in the Fifth Circuit regarding such cases involving multiple defendants is that the thirty-day period established by section 1446(b) begins to run immediately after the first defendant is served. Getty Oil Div. of Texaco v. Insurance Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir. 1988). The failure of a defendant to join in a removal petition or consent to such action within the thirty-day time limitation is a nonjurisdictional defect. Robertson v. Ball, 534 F.2d 63, 65, n. 2 (5th Cir. 1976). Yet it is well-settled that the statutory time limitation is mandatory and must be strictly complied with; the time period cannot be extended by stipulation of the parties or by order of the court. 28 U.S.C. § 1446; Sea Robin Pipeline Co. v. New Medico Head Clinic Facility, 1995 WL 479719, *1 (E.D.La. Aug. 14, 1995) (citing Skidmore v. Beech Aircraft, 672 F.Supp. 923, 925 (M.D.La. 1987)).
This does not mean that every defendant must actually sign the notice of removal. However, there must be some timely filed written document from each served defendant, or its authorized representative, indicating that it has consented. Getty Oil Div. of Texaco v. Insurance Co. of N. Am., 841 F.2d 1254, 1262, n. 11 (5th Cir. 1988). This rule is subject to exceptions. For example, joinder is not required of defendants who have not been served at the time the notice of removal is filed. See Albonetti v. GAF Corp. Chem. Group, 520 F.Supp. 825, 827 (S.D. Tex. 1981) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 540-41, 59 S.Ct. 337, 350, 83 L.Ed. 334 (1939)).
In its opposition, Amtrak seeks to overcome the well-established rule that all defendants ordinarily must join in a removal notice. Specifically, Amtrak asserts that it is a federally chartered corporation, more than half the stock of which is owned by the United States, and that 28 U.S.C. § 1349 therefore creates an independent basis of federal jurisdiction in any suit against it.
See 49 U.S.C. § 24101, et seq.
Title 28, United States Code, Section 1349 provides that "[t]he district courts shall not have jurisdiction of any civil action by or against any corporation upon the ground that it was incorporated by or under an Act of Congress, unless the United States is the owner of more than one-half of its capital stock."
The Court assumes for purposes of this motion that Amtrak, if sued alone, would have the right to remove the action under 28 U.S.C. §§ 1349 and 1441. Amtrak, however, ignores the fact that the Fifth Circuit has squarely held that a federally chartered corporation sued together with other defendants does not have the right to remove absent the joinder of the others. See Doe v. Kerwood, 969 F.2d 165 (5th Cir. 1992) (holding that the Red Cross was unlike the FDIC, the FSLIC and federal officers in that it did not have the benefit of a specific removal statute, and therefore must rely on the general removal statute and obtain the consent of co-defendants). Thus, while Amtrak's presence creates a federal question and makes the case removable, Amtrak is not excused from the procedural requirements of removal, among them, obtaining the consent of co-defendants. Accordingly, the Court must determine whether there has been compliance with the procedural requirements governing removal.
The record in this case shows that Amtrak was the first-served defendant, having been served with process and citation on April 11, 2005. Under 28 U.S.C. § 1446(b), any notice of removal must have been filed within thirty days of April 11, 2005, i.e., on or before May 11, 2005. Amtrak filed the Notice of Removal within the thirty-day time limitation, on April 19, 2005. However, the one other defendant, CN/IC, did not join in that Notice of Removal and did not file a Notice of Consent on or before May 11, 2005, the date on which the thirty-day period for properly removing the case expired. The failure of CN/IC to timely join in the removal thus renders the removal defective. As a result, remand of this action to state court is required.
CN/IC filed its Notice of Consent on May 17, 2005, six days after the time limitation expired. See Civ. A. No. 04-1125 (Rec. Doc. No. 75).
The Court recognizes that the decision does fall harshly on Amtrak. However, the Plaintiff herein did select his forum as was his right, and he is entitled to require that defendants strictly comply with the removal statute before this right is overborne. In the instant matter, CN/IC was served on April 13, 2005, and, had it elected to do so, it could easily have brought its own removal action in a timely manner. It did not do so. Even after counsel for Amtrak (who is also counsel for CN/IC) learned on May 4, 2005, of the service on CN/IC, there was ample time — one week — for CN/IC to file a timely joinder in or consent to the Notice of Removal. Through neglect, CN/IC did not do so. In short, the procedural requirements of 28 U.S.C. § 1446 could have easily been complied with, but were not.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that(1) The Motion to Remand filed by Plaintiff Paul Sciortino is GRANTED; and
(2) This civil action is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.