United States District Court, W.D. Missouri, Western Division
JEFFREY A. HUGHLEY, SR., Plaintiff,
PICK-N-PULL AUTO DISMANTLERS, KANSAS CITY, LLC, U-WRENCH-IT KANSAS CITY PROPERTIES, LLC, Defendants.
ROSEANN A. KETCHMARK, JUDGE
the Court is Plaintiff's motion to remand. (Doc. 7.) The
motion is fully briefed. (Docs. 7, 12, 16, 17.) After careful
consideration, the motion is GRANTED and the
case is REMANDED to the Circuit Court of
Jackson County, Missouri.
of background, Plaintiff originally filed this case in state
court on August 28, 2019, for personal injuries he sustained
while on property located at 8012 E. Truman Road, Jackson
County, Missouri (“the property”). (Doc. 1-1.)
Plaintiff alleges the property was owned by Defendant
U-Wrench-It Kansas City Properties, LLC
(“U-Wrench-It”). (Id.) Plaintiff also
alleges the property was possessed and operated by Defendant
Pick-N-Pull Auto Dismantlers, Kansas City, LLC
(“Pick-N-Pull”). (Id.) Both defendants
were then served on September 25, 2019. (Doc. 7-2.)
Pick-N-Pull timely filed its notice of removal on October 25,
2019. (Doc. 1.) In the notice of removal, Pick-N-Pull stated,
“[a]t the present time, because no counsel for
U-Wrench-It has entered their appearance in this case,
counsel for Pick-N-Pull is unable to secure U-Wrench-It's
consent to remove this action to federal court.”
(Id.) On November 7, 2019, Plaintiff filed his
motion to remand, noting U-Wrench-It's lack of consent.
(Doc. 7.) Then, on November 20, 2019, U-Wrench-It filed a
Notice of Consent to Removal. (Doc. 11.)
courts are courts of limited jurisdiction.” Ark.
Blue Cross & Blue Shield v. Little Rock Cardiology
Clinic, P.A., 551 F.3d 812, 816 (8th Cir. 2009). A party
may remove an action to federal court if there is complete
diversity of the parties and the amount in controversy
exceeds $75, 000. 28 U.S.C. §§ 1332(a) and 1441(a).
A notice of removal must be filed within thirty days of the
defendant's receipt of the initial pleadings. 28 U.S.C.
§ 1446(b)(1). Pursuant to 28 U.S.C. §
1446(b)(2)(A), each defendant must “officially and
unambiguously consent to a removal petition filed by another
defendant within 30 days of receiving the complaint.”
Moore v. Federal Ins. Co., No. 06-0230-CV-W-REL,
2006 WL 1382330, at *2 (W.D. Mo. May 19, 2006) (citing
Adams v. Lederle Laboratories, 569 F.Supp. 234, 243
(W.D. Mo. 1983)). After a defendant has filed a notice of
removal in federal court, a plaintiff objecting to removal
may file a motion to remand the case to state court within
thirty days of the filing of the notice of removal.
Caterpillar Inc. v. Lewis, 519 U.S. 61, 69 (1996).
contends remand is proper because U-Wrench-It failed to
timely consent to Pick-N-Pull's notice of removal. (Doc.
17.) U-Wrench-It's Notice of Consent was filed 55 days
after U-Wrench-It was served, well past the 30-day limit
allowed by statute. Thus, U-Wrench-It did not timely consent
to Pick-N-Pull's Notice of Removal.
do not dispute U-Wrench-It's consent was untimely.
(See Doc. 16.) Rather, they argue U-Wrench-It's
consent was unnecessary because U-Wrench-It is a nominal
party. (Id.); Thorn v. Amalgamated Transit
Union, 305 F.3d 826, 833 (8th Cir. 2002) (holding
nominal parties need not join in a petition to remove).
Defendants' argument is without merit. “[P]arties
who have a real interest in the litigation, who are the
subjects of a real cause of action, or who are otherwise
necessary or indispensable parties will not be considered
merely nominal or formal parties.” Mundle v.
Linde, LLC, No. 4:10 CV 2116 DDN, 2011 WL 1526965, at *2
(E.D. Mo. Apr. 20, 2011) (quoting Fisher v. Dakota
Cmty. Bank, 405 F.Supp.2d 1089, 1095 (D.N.D. 2005)).
Defendants argue U-Wrench-It is a nominal party because it
has had minimal contact with the property for the last 15
years. (Doc. 16.) The Court finds this argument unpersuasive
because even if U-Wrench-It has had minimal contact with the
property, it is undisputed U-Wrench-It owns the property
where the injury occurred. (Docs. 1-1, 16.) Plaintiff has
pleaded, in Count II, violations of a Kansas City, Missouri
Municipal Ordinance, which may apply to U-Wrench-It as the
owner of the property. (Doc. 1-1.) Thus, it cannot be said
U-Wrench-It has no real interest in the litigation.
also argue U-Wrench-It is a nominal party because Pick-N-Pull
indemnified U-Wrench-It. (Doc. 16.) In particular, Defendants
cite Pick-N-Pull's “response to [U-Wrenc-It's]
demand that Pick-N-Pull defend and indemnify
U-Wrench-It[.]” (Doc. 16-2.) However, “[t]he mere
fact that a defendant is indemnified . . . does not transform
the indemnified defendant into a nominal party.”
Mundle, 2011 WL 1526965, at *2. Moreover, by the
plain language of the letter, Pick-N-Pull reserves the right
to refuse indemnity under certain circumstances. (Doc. 16-2.)
Therefore, the Court is not persuaded U-Wrench-It is a
nominal party, and their timely consent was required for
and after careful consideration, the Court finds U-Wrench-It
did not timely consent to removal. As such, the requirements
of 28 U.S.C. § 1446 have not been met. Therefore,
Plaintiff's motion to remand is GRANTED.