United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff First Baptist Church
of Bland's Motion to Remand (Doc. 13). The Motion is
fully briefed and ready for disposition. The parties have
consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to Title 28 U.S.C. §
636(c) (Doc. 15). For the following reasons, Plaintiff's
Motion will be GRANTED and this action will
be REMANDED to the Circuit Court of
Gasconade County, Missouri.
First Baptist Church of Bland (“FBC Bland”) filed
this action for Vexatious Refusal to Pay (Count I) and Breach
of Contract (Count II) against Defendant Grinnell Mutual
Reinsurance Company (“Grinnell”) on December 20,
2017, in the Circuit Court of Gasconade County, Missouri
(Doc. 7) (the “Original Petition”). FBC Bland
alleges that Grinnell improperly failed to pay FBC
Bland's claim for damage to the roof of a building it
owns (Id.). Grinnell was served with the Petition on
January 2, 2018 (Doc. 13 at 1; Doc. 14 at 1). On January 15,
2018, FBC Bland filed an Amended Petition that added a claim
for Engineer Malpractice (Count III) against a new defendant,
Defendant Allstate Consultants, LLC (“Allstate”)
(Doc. 13-1) (the “Amended Petition”). On January
20, 2018, Allstate was served with the Amended Petition (Doc.
13-2). Grinnell filed a Notice of Removal in this Court on
January 22, 2018, including only the Original Petition, based
on diversity jurisdiction (Doc. 1).
February 12, 2018, FBC Bland filed a Motion to Remand in
which it argues that although Grinnell may not have been
aware of the Amended Petition at the time of their filing the
Notice of Removal, with the addition of Allstate, diversity
of citizenship no longer exists between FBC Bland and
Defendants (Doc. 13). Grinnell responds that the addition of
Allstate amounts to fraudulent joinder as FBC Bland fails to
state a claim against Allstate and Allstate was joined merely
to defeat diversity jurisdiction (Doc. 14).
of actions is governed by 28 U.S.C. § 1441 which states,
in relevant part, “any civil action brought in a State
court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.” Federal courts have original
jurisdiction, as is alleged here, where the parties are
citizens of different states and the amount in controversy
exceeds $75, 000. 28 U.S.C. § 1332(a). To effect
removal, all defendants who have been properly joined and
served must join in or consent to the removal of the action.
28 U.S.C. § 1446(b)(2)(A). See, e.g., Chicago, R.I.
& P. Ry. v. Martin, 178 U.S. 245, 248 (1900)
(“[I]t [is] well settled that a removal could not be
effected unless all the parties on the same side of the
controversy united in the petition. . . .”).
“[T]he failure of one defendant to consent renders the
removal defective[.]” Pritchett v. Cottrell,
Inc., 512 F.3d 1057, 1062 (8th Cir. 2008). Removal
statutes are strictly construed, and any doubts about the
propriety of removal are resolved in favor of state court
jurisdiction and remand. See Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 108-09 (1941); In re Bus.
Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th
Cir. 1993); Manning v. Wal-Mart Stores East, Inc.,
304 F.Supp.2d 1146, 1148 (E.D. Mo. 2004) (citing Transit
Cas. Co. v. Certain Underwriters at Lloyd's of
London, 119 F.3d 619, 625 (8th Cir. 1997)).
improperly removed this action without the consent of its
co-defendant Allstate. Allstate was properly served with the
Amended Petition on January 20, 2018, two days prior to
Grinnell's removal of this action. While the Amended
Petition was filed and publicly available on January 20,
2018, it is unclear from the record if Grinnell was served
with the Amended Petition prior to its removal of this
action. Regardless, whether Grinnell was served with the
Amended Petition is not at issue under Section 1446. Further,
although Grinnell asserts that the Court should disregard the
joinder of Allstate to this action in light of FBC
Bland's failure to state a claim against Allstate, the
Court may not review a defense on behalf of one defendant
asserted by the other. See White v. Bombardier
Corp., 313 F.Supp.2d 1295, 1301 (N.D. Fla. 2004)
(“Allowing a defendant to remove a case without the
consent of a codefendant based on the removing
defendant's interpretation of the jurisdictional
allegations of a complaint would give the removing defendant
a right to assert another defendant's personal defense
without that defendant's consent.”). Therefore,
because Grinnell failed to get proper consent of co-defendant
Allstate, the Court must remand this action.
IT IS HEREBY ORDERED that Plaintiff First
Baptist Church of Bland's Motion to Remand (Doc. 13) is
GRANTED and this case is
REMANDED to the Circuit Court of Gasconade
County, Missouri. A ...