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Swanson v. Jsr Trucking Inc.

United States District Court, D. New Mexico

May 15, 2019

JEFFREY R. SWANSON, Plaintiff,
v.
JSR TRUCKING INC. and VOLVO GROUP NORTH AMERICA LLC, Defendants.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before me pursuant to the Court's Order of Reference (doc. 20), referring Plaintiff's Motion to Remand (doc. 12) and the attendant briefing (docs. 14, 18) to me for analysis, proposed findings, and recommended disposition. Having reviewed all relevant materials and applicable case law, I recommend that the Court GRANT Plaintiff's Motion for the following reasons.

         I. Background

         This case stems from Plaintiff's alleged fall from the side stairs of a Volvo semi- tractor trailer in Santa Rosa, New Mexico, during a stop along Plaintiff's route as an independent contractor for JSR Trucking Inc. (“JSR Trucking”). Doc. 3-1. Plaintiff filed his Complaint against Volvo Group North America LLC (“Volvo”) and JSR Trucking in New Mexico's First Judicial District on November 30, 2018. Id. In his Complaint, Plaintiff asserted a negligence claim against JSR Trucking, and claims for strict products liability, negligence, breach of implied warranty of merchantability, and punitive damages against Volvo. Id.

         Defendant Volvo timely removed the case to federal court on January 22, 2019.[1]Doc. 3. The Notice of Removal states that this Court has diversity jurisdiction under 28 U.S.C. § 1332 and § 1441 because the parties in this action are citizens of different states and the amount in controversy exceeds $75, 000. Id. at 2-3.

         Prior to the removal, JSR Trucking was properly served through the New Mexico Secretary of State on December 19, 2018. Doc. 12-3 at 10; doc. 12-4 at 2. It has not answered or otherwise appeared in the state court or this Court, nor has it consented to the removal.

         On February 20, 2019, Plaintiff filed the instant Motion to Remand. Doc. 12. Briefing was complete on April 10, 2019. Doc. 18.

         II. Standard of Review

         Ordinarily, if removal is based on federal diversity jurisdiction, removal is proper only where all properly joined and served defendants consent to removal. See Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation, 797 F.3d 800, 805 (10th Cir. 2015) (quoting § 1446(b)(2)(A)). To remove a case based on diversity, the removing party bears the burden of proving removal is proper by a preponderance of the evidence. See Martin v. Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001) (abrogated on other grounds in Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81 (2014)). Moreover, “[r]emoval statutes are to be strictly construed, and all doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         III. Analysis

         “[T]here are two types of improperly removed cases: those in which the federal court has no subject matter jurisdiction and those with defects in the removal procedure itself.” Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1076 (10th Cir. 1999) (citation omitted). The parties do not dispute that the Court has subject matter jurisdiction in this case, see generally docs. 12, 14, 18, because the requirements for diversity jurisdiction have been met. Rather, their dispute concerns the second basis: whether removal procedure was defective.

         Removal procedure is governed by 28 U.S.C. § 1466. “The failure to comply with the[] express statutory requirements for removal can fairly be said to render the removal ‘defective' and justify a remand.” Id. at 1077 (quoting Snapper, Inc. v. Redan, 171 F.3d 1249, 1253 (11th Cir.1999)). The Tenth Circuit recognizes three grounds for remanding a case due to defects in removal procedure: “(1) noncompliance with the time limits provided in § 1446(b); (2) noncompliance with the unanimity requirements in § 1446(b)(2)(A); and (3) noncompliance with the forum-defendant rule in § 1441(b), which forbids removal when a defendant is a citizen of the forum state.” City of Albuquerque v. Soto Enterprises, Inc., 864 F.3d 1089, 1094-95 (10th Cir. 2017). Plaintiff contends that removal was defective on the second ground, namely, because Defendant Volvo failed to comply with the unanimity requirements in § 1446(b)(2)(A). See generally docs. 12, 18. As a result, he argues that the case should be remanded to the First Judicial District. Id.

         Under the unanimity requirements of § 1446(b)(2)(A), if a case is removed based solely on federal diversity jurisdiction, “all defendants who have been properly joined and served must join in or consent to the removal of the action.” Harvey, 797 F.3d at 805 (quoting § 1446(b)(2)(A)); see also Knight v. Mooring Capital Fund, LLC, 749 F.3d 1180, 1183-84 (10th Cir. 2014) (quotation omitted) (“consent [to removal] is required…of defendants who have been properly joined and served”); Romero v. Knee, 2018 WL 3966275, at *2 (D.N.M. Aug. 17, 2018) (slip copy) (quoting Doe v. Sunflower Farmers Markets, Inc., 831 F.Supp.2d 1276, 1278 (D.N.M. 2011)) (“Often called the ‘unanimity rule,' a failure of all ‘served' defendants to consent in writing to removal constitutes a procedural defect requiring remand.”). Here, Defendant JSR Trucking did not join in or consent to the removal of the action.

         This failure to consent is not necessarily fatal. This Court has previously recognized two exceptions under which ...


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