Freeman v. State Farm Mutual Auto Insurance Company et al Case remanded to the 55th Judicial District Court of Harris County, Texas., No. 4:2018cv04408 - Document 13 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 3 First MOTION to Remand. This action is remanded to the 55th Judicial District Court of Harris County, Texas. Case terminated on 1/11/2019. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Freeman v. State Farm Mutual Auto Insurance Company et al Case re... Court of Harris County, Texas. Doc. 13 United States District Court Southern District of Texas ENTERED January 11, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JADE FREEMAN, David J. Bradley, Clerk § § Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANYi STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY d/b/a STATE FARMi STATE FARMi PROGRESSIVE SOUTHEASTERN INSURANCE COMPANY d/b/a PROGRESSIVE CLAIMSi and PROGRESSIVE PALOVERDE INSURANCE COMPANY d/b/a PROGRESSIVE DIRECT AUTO, Defendants. § § § § § § § § § § § § § § § § CIVIL ACTION NO. H-18-4408 MEMORANDUM OPINION AND ORDER OF REMAND Plaintiff, February 21, Jade 2018, Freeman, in the originally 55th filed Judicial this action on District Court of Harris County, Texas (Civil Action No. 2018-11391), against State Farm Mutual Automobile Automobile Insurance (collectively, Insurance Company, Company d/b/a State "State Farm") . 1 State Farm, Farm Mutual and State Farm On October 9, 2018, the plaintiff filed her First Amended Petition in the state court action adding See Plaintiff's Original Petition and Requests for Disclosure, Exhibit A to Defendants Progressive Southeastern Insurance Company d/b/a Progressive Claims and Progressive Paloverde Insurance Company d/b/a Progressive Direct Auto's Notice of and Petition for Removal ("Progressive's Removal Petition"), Docket Entry No. 1-1. 1 Dockets.Justia.com Progressive Southeastern Insurance Company d/b/a Progressive Claims and Progressive Direct Auto defendants. 2 Paloverde Insurance (collectively, Company d/b/a Progressive as additional "Progressive") Plaintiff's claims arise from an insurance coverage dispute following a hit-and-run automobile collision. Plaintiff brought claims against both State Farm and Progressive seeking damages for breach of contract and for both defendants' alleged violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act. On November 20, 2018, Progressive filed its Removal Petition (Docket Entry No. 1). Pending before the court are Plaintiff's Motion to Remand (Docket Entry No. 3) ; Defendants Progressive Southeastern Insurance Company d/b/a Insurance Progressive Company d/b/a Progressive Plaintiff's Motion to Remand Entry No. 9) ; Claims and Progressive Direct Auto's Paloverde Response ("Progressive's Response") and Plaintiff's Reply to Defendant, to (Docket Progressive Southeastern Insurance Company's Response to Plaintiff's Motion to Remand ("Plaintiff's Reply") (Docket Entry No. 10) . For the reasons stated below, the court concludes that this action should be remanded to state court. I. Standard of Review and Applicable Law "A party may remove an action from state court to federal court if the action is one over which the federal court possesses 2 See Plaintiff's First Amended Petition, Exhibit B Progressive's Removal Petition, Docket Entry No. 1-2, p. 2. -2- to subject matter jurisdiction." Manguno v. Prudential Property and Casualty Insurance Co., 276 F.3d 720, 723 28 U.S.C. § 1441(a)). "The party (5th Cir. 2002) seeking to assert (citing federal jurisdiction, in this case [Progressive], has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists." New Orleans & Gulf Coast Railway Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008). Notice of removal "shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading . 28 U.S.C. 1446(b); Getty Oil Corp., " a Division of Texaco, Inc. v. Insurance Company of North America, 841 F.2d 1254, 1263 (5th Cir. 1988). When removal is based on diversity jurisdiction, as in this case, all defendants that have been properly joined and served must consent to removal by timely filing a written indication of consent within the thirty days prior to the expiration of the removal period. Getty Oil, 841 F.2d at 1263. 28 U.S.C. § 1446{b) (2); Each defendant must formally file its own manifestation of consent -- out-of-court agreements between the defendants are not sufficient. n.11. The failure of all See Getty Oil, defendants to join 841 F.2d at 1262 in the removal petition within the statutory removal period renders the petition for removal procedurally defective. 169 (5th Cir. 1992). Doe v. Kerwood, 969 F.2d 165, If the plaintiff timely seeks remand in light of one or more of the defendants' failures to file written consent to removal, the court should remand the case to state court. -3- Id. A motion for remand based on a defect in removal procedure is timely as long as it is filed within 30 days after the filing of the defendant's notice of removal. II. See 28 U.S.C. 1447(c). § Analysis Plaintiff argues that remand is appropriate because State Farm failed to timely file a written consent to removal with the court. Progressive responds that it obtained State Farm's consent in an e-mail before the deadline passed. Progressive was served with Plaintiff's First Amended Petition in the state court action on October 24, 2018, making November 23, 2018, the deadline both for Progressive to file its Notice of Removal and for State Farm to consent to removal. 3 Progressive filed a timely notice of removal on November 20, 2018. 4 filed a consent to removal on December 26, 2018, State Farm well after the November 23 deadline. 5 Progressive argues that an e-mail exchange between Progressive counsel expiration of for the 30-day and removal State period Farm is manifestation of State Farm's consent to removal. a before the sufficient The e-mail, sent by State Farm's counsel to Progressive's counsel on November 7, See Progressive's Removal Petition, Docket Entry No. 1, p. 2; Citations and Affidavits of Service, Exhibit C to Progressive's Removal Petition, Docket Entry No. 1-3, pp. 2-5. 3 5 See Consent to Removal, Docket Entry No. 11. -4- 2018, states: e-mail, "We are not opposed to the removal." 6 however, Getty Oil, does not comply with 28 U.S.C. 841 F.2d at 1262 n.11 § The internal 1446(b). See (requiring that each defendant individually consent to removal with "some timely filed written indication that [removal]" (emphasis added)). failed formally to [the defendant] file has actually consented to Because Progressive and State Farm notice of State Farm's consent to Progressive's Removal Petition by the November 23, 2018, deadline, Progressive's Removal Petition was procedurally defective. III. Conclusion and Order of Remand For the reasons stated above, the court concludes that removal of this action to federal court was procedurally defective because Progressive failed to timely file State Farm's formal consent with the court in accordance with the Fifth Circuit's interpretation of § 1446(b). No. 3) Accordingly, Plaintiff's Motion to Remand (Docket Entry is GRANTED. This action is REMANDED to the 55th Judicial District Court of Harris County, Texas. The Clerk will provide a copy of this Memorandum Opinion and Order of Remand to the District Clerk of Harris County, Texas. SIGNED at Houston, Texas, on this 11th day UNITED STATES DISTRICT JUDGE 6 See E-mail sent by Yanet M. Benitez to Anne-Marie Abarado [November 7, 2018 4:46 PM], Exhibit E to Progressive's Response, Docket Entry No. 9-5. -5-
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