Liberty Mutual Fire Insurance Company v. Ford Motor Company et al, No. 2:2015cv05987 - Document 21 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 11 Motion to Remand. Signed by Judge Sarah S. Vance on 2/12/16. (jjs)
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Liberty Mutual Fire Insurance Company v. Ford Motor Company et al Doc. 21 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LIBERTY MUTUAL FIRE INSURANCE COMPANY CIVIL ACTION VERSUS NO. 15-5987 FORD MOTOR COMPANY SECTION "R" (4) ORD ER AN D REASON S Defendant Ford Motor Com pany rem oved plaintiff’s state-court action on Novem ber 17, 20 15. Plaintiff Liberty Mutual Fire Insurance Com pany now m oves the Court to rem and the action. For the following reasons, the Court denies the motion. I. BACKGROU N D This action arises out of the allegedly spontaneous com bustion of Scott Gautreaux’s Ford Expedition in J uly 20 14. While Gautreaux’s Expedition was parked in his garage, it caught on fire, damaging the vehicle and Gautreaux’s home. As Gautreaux’s insurer, Liberty Mutual paid him certain policy proceeds for the dam ages he incurred as a result of the fire. 1 1 See generally R. Doc. 1-1 (Petition for Dam ages). Dockets.Justia.com Liberty Mutual then filed this Louisiana products liability action against Ford in Louisiana’s Twenty-Fourth J udicial District Court for the Parish of J efferson on J une 2, 20 15. 2 At the tim e of filing, Liberty Mutual directed the state court to withhold service. According to Liberty Mutual, on J uly 1, 20 15, it requested the Clerk of Court to serve Ford form ally. 3 Som etime in August, Liberty Mutual attem pted to engage in discovery with Ford, which notified Liberty Mutual that it had not been served. 4 On September 21, 20 15, Liberty Mutual again asked the Clerk of Court to form ally serve Ford. Ford still was not form ally served. Nonetheless, Ford and Liberty Mutual com m unicated inform ally, via letter and e-m ail, about Gautreaux and his allegedly defective vehicle. 5 On October 6, 20 15, four m onths after filing its petition for dam ages, Liberty Mutual asked the Clerk of Court for the third tim e form ally to serve Ford. According to Liberty’s Mutual correspondence with the Twenty- Fourth J udicial District Court, the Clerk never received Liberty Mutual’s two 2 Id. 3 R. Doc. 19-3 at 1. 4 R. Doc. 11-8 at 1-2. 5 See R. Docs. 11-6, 11-7, 11-8 , 11-9. earlier requests for service. 6 The Clerk finally issued form al service of process on Ford, through its registered agent, on October 15, 20 15. 7 The registered agent received service on Ford’s behalf on October 21, 20 15. 8 After receiving service, Ford answered Liberty Mutual’s petition for dam ages in state court on Novem ber 2, 20 15. 9 Ford also sent Liberty Mutual certain discovery requests on November 13, 20 15. 10 Two days later, on November 17, 20 15, Ford rem oved the action to this Court. 11 Liberty Mutual now m oves the Court to rem and the case. 12 Liberty Mutual argues that Ford untim ely removed the action under the thirty-day deadline after receiving service of the initial pleading in 28 U.S.C. § 1446. Liberty Mutual contends that Ford received two copies of the petition for dam ages—in J uly and September 20 15—but did not rem ove until November 20 15. Liberty Mutual also argues that Ford waived its right to rem ove by 6 R. Doc. 19-3. 7 R. Doc. 14-3 at 1. 8 R. Doc. 14-4 at 1. 9 R. Doc. 14 at 3 ¶ 13. 10 R. Doc. 11-10 . 11 See generally R. Doc. 1. 12 R. Doc. 11. answering the petition in state court and by sending Liberty Mutual a discovery request. 13 II. D ISCU SSION Section 1446 of Title 28 of the United States Code imposes a thirty-day tim e period for removing a state-court action. The statute provides: The notice of rem oval of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief . . . or within 30 days after the service of sum m ons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b)(1). Thus, under § 1446, a form al summ ons is crucial. As the Supreme Court explains, “a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by form al process.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). Accordingly, a defendant’s thirty-day rem oval period is triggered by either “sim ultaneous service of the sum m ons and com plaint, or receipt of the com plaint, ‘through service or otherwise,’ after and apart from service of the sum m ons . . . .” Id. “[M]ere receipt of the com plaint” or “actual notice of the com plaint through inform al channels” 13 See generally R. Doc. 11-1. does not com m ence the rem oval period. Id.; City of Clarksdale v. BellSouth Telecom m s., Inc., 428 F.3d 20 6, 210 (5th Cir. 20 0 5). Here, records from the Twenty-Fourth J udicial District Court reflect that Ford received form al service of process, and thus was brought under the court’s authority, on October 21, 20 15. In addition, under Louisiana law, the person effectuating service m ust also deliver a certified copy of the petition. See La. Code Civ. Proc. art. 120 2. Accordingly, this is the earliest day on which Ford’s thirty-day rem oval period could have begun. Nothing in the record supports Liberty Mutual’s argum ent that Ford previously received a copy of the petition in J uly or Septem ber. Indeed, according to Liberty Mutual’s own docum entation, none of its correspondence to Ford purported to include the petition for dam ages, and the Twenty-Fourth J udicial District Court Clerk never received Liberty Mutual’s J uly or Septem ber requests for form al service. Regardless, “mere receipt of the com plaint” or “actual notice of the complaint through informal channels” does not com m ence the rem oval period. Murphy Bros., 526 U.S. at 347-48; City of Clarksdale, 428 F.3d at 210 . Because Ford was formally served on October 21, 20 15, its November 17 notice of rem oval was tim ely under 28 U.S.C. § 1446. Liberty Mutual’s argum ent that Ford waived its right to rem ove also fails. “A waiver of the right to rem ove m ust be clear and unequivocal.” Tedford v. W arner-Lam bert Co., 327 F.3d 423, 428 (5th Cir. 20 0 3). A party m aintains its right to rem ove even though it has participated in state court proceedings, as long as the party has not sought adjudication on the m erits. See id. Thus, “appearing in court, filing an answer, . . . or filing other prelim inary and non-dispositive m otions” are not sufficient acts from which to infer that a party waived its right of rem oval. Biggers v. State Farm Mut. Auto. Ins. Co., No. 92-20 0 4, 1992 WL 266166, at *2 (E.D. La. 1992) (collecting cases). Before rem oving this case, Ford filed an answer in state court and sent discovery requests to Liberty Mutual. Neither action sought disposition of the case on its merits. Therefore, Ford did not waive its right of rem oval, and its rem oval was proper. See Dem ourelle v. Bond, No. 990 558, 1999 WL 20 3269, at *1 (E.D. La. 1999) (answering and participating in discovery does not am ount to waiver); Gallo v. Elm otores, Inc., No. 981986, 1998 WL 661485, at *1 (E.D. La. 1998) (same); Thom as v. Am . Honda Motor Co., No. 93-30 0 5, 1993 WL 476567, at *1 (E.D. La. 1993) (sam e). Accordingly, the Court denies Liberty Mutual’s Motion to Rem and. III. CON CLU SION For the foregoing reasons, the Court DENIES plaintiff Liberty Mutual’s Motion to Rem and. 12th New Orleans, Louisiana, this _ _ _ day of February, 20 16. ____________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE
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