McLaughlin v. Ford Motor Co.

603 F.Supp.3d 1079

Christopher MCLAUGHLIN and Sarah McLaughlin, individually, and as next parents and next friends of J.M., L.M., and F.M., Plaintiffs,

v.FORD MOTOR COMPANY and FRN of Tulsa, LLC, Defendants.

Case No. 21-CV-00096-GKF-SH

United States District Court, N.D. Oklahoma.

Signed May 18, 2022

Clark Otto Brewster, Mbilike Mwafulirwa, Montgomery Lloyd Lair, Brewster & De Angelis, P.L.L.C., Tulsa, OK, for Plaintiffs.

Andrew Lee Richardson, Dru Aldric Prosser, Mary Quinn-Cooper, McAfee & Taft, Tulsa, OK, for Defendants.

OPINION AND ORDER

GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE

This matter comes before the court on the Motion to Remand [Doc. 19] and Motion to Strike Defendant's Notice of Consent to Removal [Doc. 21] of plaintiffs Christopher McLaughlin and Sarah McLaughlin, individually, and as next parents and next friends of J.M., L.M., and F.M. For the reasons set forth below, the motions are denied.

Background/Procedural History

This is an automobile negligence case. Mr. McLaughlin alleges that, on April 4, 2019, he was driving a 2004 Ford F-150 southbound on Interstate 35 in Edmond, Oklahoma, when another vehicle attempted to make a sudden and unsafe lane change into his lane. Mr. McLaughlin asserts that he steered left to avoid being hit, lost control and, as a result, the vehicle rolled over. Mr. McLaughlin suffered permanent injuries in the incident.

The McLaughlins filed this case on January 27, 2021 in the District Court in and for Tulsa County against defendants Ford Motor Company and FRN of Tulsa, LLC. Ford removed the case to this court on March 3, 2021. In the Notice of Removal, Ford represented, "FRN has consented to the removal of this action." [Doc. 2, p. 2, ¶ 4]. Additionally, Ford attached to the Notice an email from Troy McPherson, FRN's then-counsel, to Dru Prosser, Ford's counsel, in which Mr. McPherson states: "FRN of Tulsa, LLC consents to removal of this action to federal court." [Doc. 2-2]. The case was originally assigned to then-Chief Judge John E. Dowdell, but was reassigned to current-Chief Judge John F. Heil on March 5, 2021.

Ford filed an Answer to plaintiffs’ Complaint. On March 10, 2021, FRN filed a Motion to Dismiss Plaintiffs’ Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Therein, FRN raises no objection to the court's jurisdiction.

On March 30, 2021, the McLaughlins filed the Motion to Remand premised on the unanimity requirement of 28 U.S.C. § 1446(b) —specifically, FRN's failure to file a separate notice of its consent to removal of this action within thirty days. The next day, March 31, 2021, FRN filed a Notice of Consent to Removal. That same day, the McLaughlins filed the Motion to Strike Defendant's Notice of Consent to Removal.

Ford and FRN filed joint responses in opposition to both the motion to remand, and the motion to strike. The McLaughlins filed a reply in support of the motion to remand, as well as one in support of the motion to strike. Thus, both the motion to remand and motion to strike are ripe for determination.

On May 11, 2022, Chief Judge Heil recused, and this case was reassigned to Judge Terence Kern. That same day, Judge Kern recused, and the matter was reassigned to the undersigned.

Legal Standard

"A defendant may remove a civil action initially brought in state court if the federal district court could have exercised original jurisdiction." Salzer v. SSM Health Care of Okla., Inc. , 762 F.3d 1130, 1134 (10th Cir. 2014) (citing 28 U.S.C. § 1441(a) ). "However, a federal court must remand a removed action back to state court ‘[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.’ " Id. (quoting 28 U.S.C. § 1447(c) ). "The party invoking federal jurisdiction has the burden to establish that it is proper, and ‘there is a presumption against its existence.’ " Id. (quoting Basso v. Utah Power & Light Co. , 495 F.2d 906, 909 (10th Cir. 1974) ); see also Dutcher v. Matheson , 733 F.3d 980, 985 (10th Cir. 2013) ("As the parties removing this case to federal court, the defendants bear the burden of establishing jurisdiction by a preponderance of the evidence."); Middleton v. Stephenson , 749 F.3d 1197, 1200 (10th Cir. 2014) ("Start with the rule that a party invoking diversity jurisdiction bears the burden of proving its existence by a preponderance of the evidence.").

Analysis

The federal removal statute, 28 U.S.C. § 1446, provides, in part, as follows:

(a) Generally – A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(b) Requirements; generally. —(1) The notice of removal 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 upon which such action or proceeding is based, or within 30 days after the service of summons 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.

(2)(A) When 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.

The McLaughlins’ motion to remand turns on the "unanimity requirement"—that is, the requirement that all properly joined and served co-defendants "join in or consent to the removal of the action." 28 U.S.C. § 1446(b)(2)(A) ; see Bruning v. City of Guthrie , 101 F. Supp. 3d 1142, 1144 (W.D. Okla. 2015) ("[ Section 1446(b)(2)(A) ] is the current statutory embodiment of the ‘unanimity’ rule long recognized in federal law, which requires that all defendants join in or consent to the removal."). The McLaughlins assert that unanimity requires the non-removing co-defendants (that is, those who do not formally join the Notice of Removal) to independently file a separate, written consent. In contrast, Ford and FRN argue that the requirement is satisfied if the removing defendant represents in the Notice of Removal, signed pursuant to Federal Rule of Civil Procedure 11, that the properly joined and served co-defendants consent to removal.

Neither the U.S. Supreme Court nor the U.S. Court of Appeals for the Tenth Circuit has resolved what form a served co-defendant's joinder or consent must take to satisfy the unanimity requirement where the co-defendant has not formally join the Notice of Removal.¹ Further, a split exists among other Circuit Courts of Appeals.

The Second, Fifth, and Seventh Circuits require each non-removing co-defendant to file a separate, written indication of consent. See Pietrangelo v. Alvas Corp. , 686 F.3d 62, 66 (2d Cir. 2012) ; Roe v. O'Donohue , 38 F.3d 298, 301 (7th Cir. 1994) ; Getty Oil Corp. v. Ins. Co. of N. Am. , 841 F.2d 1254, 1262 n.11 (5th Cir. 1988). In the earliest case, the Fifth Circuit reasoned as follows:

But while it may be true that consent to removal is all that is required under section 1446, a defendant must do so itself. This does not mean that each defendant must sign the original petition for removal, but there must be some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have authority to do so, that it has actually consented to such action. Otherwise, there would be nothing on the record to "bind" the allegedly consenting defendant.

Getty Oil Corp. , 841 F.2d at 1262 n.11.

In contrast, the Fourth, Sixth, Eighth, and Ninth Circuits permit the removing defendant to unambiguously aver to the non-removing co-defendant's consent in the Notice of Removal signed pursuant to Rule 11. See Griffioen v. Cedar Rapids & Iowa City Ry. Co. , 785 F.3d 1182, 1187 (8th Cir. 2015) ("We therefore hold 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."); Mayo v. Bd. of Educ. of Prince George's Cnty. , 713 F.3d 735, 741-42 (4th Cir. 2013) ("[W]e conclude that a notice of removal signed and filed by an attorney for one defendant representing unambiguously that the other defendants consent to the removal satisfies the requirement of unanimous consent for purposes of removal."); Proctor v. Vishay Intertechnology Inc. , 584 F.3d 1208, 1224-25 (9th Cir. 2009) ("[W]e conclude that the filing of a notice of removal can be effective without individual consent documents on behalf of each defendant. One defendant's timely removal notice containing an averment of the other defendants’ consent and signed by an attorney of record is sufficient."); Harper v. AutoAlliance Int'l, Inc. , 392 F.3d 195, 201 (6th Cir. 2004).

Likewise, district courts within the Tenth Circuit are split. Some courts require each defendant to "independently and unambiguously file their consent and intent to join in the removal." Kozel v. Okla. Dep't of Pub. Safety , No. CIV-12-274-FHS, 2012 WL 3101403, at *2 (E.D. Okla. July 30, 2012) (quoting Jarvis v. FHP of Utah, Inc. , 874 F. Supp. 1253, 1254 (D. Utah 1995) ); see also 511 Couch LLC v. Travelers Prop. Cas. Co. of Am. , No. CIV-14-1279-F, 2015 WL 13567456 (W.D. Okla. Feb. 6, 2015) ; Choctaw Nation of Okla. v. Occidental Fire & Cas. Co. of North Carolina , No. CIV-14-182-KEW, 2015 WL 154013 (E.D. Okla. Jan. 13, 2015) ; Forsythe v. City of Woodward , No. CIV-13-710-C, 2013 WL 5230005 (W.D. Okla. Sept. 16, 2013) ; NPI, Inc. v. Pagoda Ventures,...