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Mikelson v. Allstate Fire And Casualty Insurance Co.

United States District Court, W.D. Missouri, Western Division

February 16, 2017

SARAH MIKELSON, Plaintiff,
v.
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, ASHLEY STEVENSON, PROGRESSIVE DIRECT INSURANCE COMPANY, Defendants.

          ORDER (1) HOLDING IN ABEYANCE PLAINTIFF'S MOTION TO REMAND, (2) DIRECTING THE PARTIES TO SUPPLEMENT THEIR BRIEFS, AND (3) ORDER TO SHOW CAUSE

          ROSEANN A. KETCHMARK, JUDGE.

         This matter comes before the Court on Plaintiff Sarah Mikelson's Motion to Remand. (Doc. 7.) For the following reasons, the Court HOLDS IN ABEYANCE its ruling on the motion, directs the parties to supplement their briefs on the nominal party issue, and further directs Plaintiff to respond to the Court's show cause directive.

         I. Background

         On October 31, 2016, Plaintiff originally filed this lawsuit in the Circuit Court of Jackson County, Missouri. The lawsuit consists of three defendants: Ashley Stevenson (“Stevenson”), Allstate Fire and Casualty Insurance Company (“Allstate”), and Progressive Direct Insurance Company (“Progressive”). (Doc. 1-1.) In her petition, Plaintiff alleges that she was injured in an accident that occurred in Kansas City, Missouri, when Stevenson's vehicle hit the motorcycle upon which Plaintiff was riding. Plaintiff alleges that at the time of the accident, she was insured under policies issued by Allstate and Progressive. Plaintiff's first cause of action (Count I) seeks to recover uninsured motorist benefits under the Allstate policy and Plaintiff's second cause of action (Count II) seeks a declaratory judgment stating that Progressive does not have a lien on money offered by Stevenson's insurance company as settlement for Plaintiff's separate underlying liability claims.

         Allstate was served on November 14, 2016, and thereafter filed a Notice of Removal on November 21, 2016. The Notice of Removal alleges that jurisdiction exists pursuant to 28 U.S.C. § 1332, because there is complete diversity of citizenship between Plaintiff and all defendants and the amount in controversy exceeds $75, 000. (Doc. 1.) Plaintiff is a Kansas citizen; Stevenson is a Missouri citizen; Allstate is Illinois corporation and has its principal place of business in that state; and Progressive is an Ohio corporation and its principal place of business in that state. Allstate's Notice of Removal states that as of the date of removal, its two co-defendants had not been served. (Doc. 1 at 2, ¶¶ 4, 9-10.)

         Plaintiff filed her Motion to Remand on November 23, 2016, in which she raises multiple bases for remand. Plaintiff raises both jurisdictional and procedural issues, and while the Court concludes that removal procedures were followed, the parties' discussion is insufficient to facilitate a meaningful analysis of the Court's jurisdiction. As discussed below, the Court holds its ruling on Plaintiff's Motion to Remand in abeyance upon additional briefing by the parties. At present, the Court will resolve the following two issues raised by Plaintiff's Motion to Remand-(1) the rule of unanimity and (2) the forum-defendant rule with respect to unserved defendants.

         II. Discussion

         A. The Rule of Unanimity

         The Court first addresses Plaintiff's argument that Allstate's removal is procedurally defective by Allstate's failure to satisfy the unanimity requirement.

         28 U.S.C. § 1446(b)(2)(A) provides that “[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” “Where there are multiple defendants, all must join in [removal] within thirty days of service.” Christiansen v. Branch Cmty. Sch. Dist., 674 F.3d 927, 932 (8th Cir. 2012) (citation omitted). It is not necessary for all defendants to actually sign the notice of removal so long as there is “some timely filed written indication from each served defendant, or from some person with authority to act on the defendant's behalf, indicating that the defendant has actually consented to the removal.” Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008) (citation and internal quotation marks omitted). Stemming from the rationale that the unanimity requirement should not be applied in a hypertechnical and unrealistic manner, the written indication of consent can come in various forms. Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1187 (8th Cir. 2015). In Griffioen, the Eighth Circuit held “that a defendant's timely removal notice indicating consent on behalf of a codefendant, signed and certified pursuant to Rule 11 and followed by the filing of a notice of consent from the codefendant itself, sufficiently establishes that codefendant's consent to removal.” Id. at 1188.

         As an exception to the rule of requiring codefendants to join in removal, defendants not yet served at the time of removal need not join in removal. See Hutchins v. Priddy, 103 F.Supp. 601, 603-04 (W.D. Mo. 1952); Roberts v. Palmer, 354 F.Supp.2d 1041, 1044 (E.D. Mo. 2005). Later-served defendants may still object to removal. 28 U.S.C. § 1448 provides as follows:

[i]n all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court. This section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case.

         Courts in this circuit are divided on the manner in which a non-removing co-defendant satisfies the unanimity requirement. Compare Sorell v. Garrison Property and Casualty, Ins. Co., No. 4:15-00845-HFS (Doc. 22) (W.D. Mo. Mar. 17, 2016) (“The later-served defendant's right to veto the removal by moving to remand renders any need for the later-served defendant to join the removal superfluous: if the later-served defendant wants to be in federal court he does nothing; if he prefers a state forum he moves to remand.” (citation omitted)) with Noel v. Laclede Gas Co., 612 F.Supp.2d 1051, 1055-56 (E.D. Mo. 2009) (“Removal jurisdiction requires all defendants to join in the removal petition or [if later-served, ] consent to removal within thirty days of service.” (citation omitted)).

         Here, Allstate's Notice of Removal states that Progressive and Stevenson were unserved defendants at the time of removal. (Doc. 1 at 2, ¶¶ 9-10.) Plaintiff's Motion to Remand then challenged the validity of removal on the basis that Allstate “has not shown the Court that the other Defendants join in the removal.” (Doc. 7 at 3, ¶ 7.) In its opposition to the Motion to Remand, Allstate represents that “Progressive consents to removal of this case.” (Doc. 10 at 2.) In support of this assertion, Allstate has also submitted an email, which is dated December 2, 2016, and appears to have been sent by a “Casualty Manager” at Progressive to Allstate's counsel, with the following subject line: “Mikelson vs. Allstate, Stevenson and Progressive Our Claim 16-4332567.” (Doc. 10 at 7, Exhibit B.) The body of the email contains this statement: “this will confirm our discussion of this afternoon where I told you that Progressive consents to having this matter removed to federal court.” (Id.) Plaintiff, in her reply, points out that “the Sheriff has now filed his return. It actually shows that Progressive was served before Allstate was served. Both Defendants were served by the Director of Insurance of Jefferson City.” (Doc. 11 at 2.)

         Although the docket in this case does not contain proof of service upon Progressive, the Court takes judicial notice of the state court case, Jackson County, Missouri, Case No. 1616-CV26412. The state case includes a proof of service filed on November 28, 2016. Despite Plaintiff's assertion that “Progressive was served before Allstate[, ]” the docket entries in the state court case indicate that both Allstate and Progressive were served at the same time on November 14, 2016. (Doc. 11 at ...


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