United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge
the Court is Plaintiffs' Motion to Remand (Dkt. 12).
Defendants have filed a Response in Opposition (Dkt. 14). For
the reasons detailed below, Plaintiffs' Motion to Remand
Gretchen Archer (“Archer”) and Loriann Wood
(“Wood”) (together, “Plaintiffs”)
originally filed their Amended Petition in the District Court
of Wagoner County, Oklahoma, asserting claims against five
Defendants: (1) All My Sons Moving & Storage of Tulsa,
Inc. (“AMS”), (2) All My Sons Business
Development (“BDC”), (3) RVNB Holdings, Inc.
(“RVNB”), (4) Jonathan Martin
(“Martin”), and (5) Kwante Cortez Hawkins
“Defendants”). (Dkt. 2-1). In the Amended
Petition, Plaintiffs allege that Archer hired AMS to help
move her daughter, Wood, from Oklahoma to Mississippi, and
she signed a bill of lading for the interstate transfer of
numerous personal property items. (Dkt. 2-1, ¶ 12). On
October 30, 2014, four AMS employees appeared at Archer's
residence to move those personal property items.
(Id. ¶ 13). AMS employees were asked to move a
safe, which contained various items including jewelry, but
the AMS employees were unable to move the safe. (Id.
¶ 14-16). Plaintiffs allege the AMS employees stole
numerous pieces of jewelry that were in the safe and other
items, which had a value in excess of $29, 000 but which were
not included on the bill of lading. (Id.
¶¶ 19-21). Plaintiffs further allege AMS employees
damaged other items during the move that were included in the
bill of lading, which had a value of $3, 699. (Id.
assert three causes of action, as well as a claim for
punitive and exemplary damages. In the First Cause of Action,
Plaintiffs claim breach of contract and negligence by AMS
under the Carmack Amendment, 49 U.S.C. § 14706(d)(1),
for Wood's damaged property amounting to $3, 699.00.
(Id. ¶¶ 25-34). In the Second Cause of
Action, Plaintiffs claim negligent hiring, retention, and
supervision by AMS of its employees. (Id.
¶¶ 36-42). In the Third Cause of Action, Plaintiffs
claim conversion by Martin and Hawkins by taking
Plaintiffs' personal property without consent, and
respondeat superior liability against AMS.
(Id. ¶¶ 44-49). Plaintiffs further assert
alter ego or respondeat superior liability against
RVNB and BDC with respect to all causes of action.
April 11, 2017, Defendants BDC and RVNB removed the case to
this Court through the filing of a Notice of Removal as
required under 28 U.S.C. §§ 1441, 1445, and 1446.
(Dkt. 2). BDC and RVNB assert this Court has jurisdiction
over this action pursuant to 28 U.S.C. § 1337(a),
because the First Cause of Action raises a claim pursuant to
the Carmack Amendment and the matter in controversy for the
bill of lading exceeds $10, 000. BDC and RVNB assert that all
Defendants except Martin consent to removal. (See
Dkt. 2-2). BDC and RVNB further assert that Martin was served
in this action only by publication, and he has not entered an
appearance or filed an answer in this matter.
1, 2017, Plaintiffs filed a Motion to Remand pursuant to 28
U.S.C. § 1447(c), contending that (1) the removal of
this matter was procedurally defective due to Defendants'
failure to obtain unanimous consent for removal and (2) this
Court lacks subject matter jurisdiction over this action.
(Dkt. 12). Defendants oppose remand. (Dkt. 14).
28 U.S.C. § 1441 a defendant in state court may remove
the case to federal court when a federal court would have had
jurisdiction if the case had been filed there
originally.” Topeka Hous. Auth. v. Johnson,
404 F.3d 1245, 1247 (10th Cir. 2005). Federal courts have
original jurisdiction over actions brought pursuant to the
Carmack Amendment, but “only if the matter in
controversy for each receipt or bill of lading exceeds $10,
000, exclusive of interest and costs.” 28 U.S.C. §
that invokes federal jurisdiction bears the burden of proving
removal is proper. Laughlin v. Kmart Corp., 50 F.3d
871, 873 (10th Cir.1995), abrogated on other grounds by
Dart Cherokee Basin Operating Co., LLC v. Owens, 135
S.Ct. 547 (2014). Given the limited scope of federal
jurisdiction, “[r]emoval statutes are to be strictly
construed, and all doubts are to be resolved against
removal.” Fajen v. Found. Reserve Ins. Co.,
Inc., 683 F.2d 331, 333 (10th Cir. 1982) (citations
omitted). If the federal district court lacks jurisdiction
over the removed case, it must remand the case to the state
court. 28 U.S.C. § 1447(c).
assert removal was improper because Defendant Martin did not
consent to removal. RVNB and BDC argue Martin's consent
was not required, because he was unable to be found and
service on Martin was authorized by publication on September
2, 2015. Martin has not entered an appearance or answer in
to federal court is appropriate only if all properly joined
and served defendants join in or consent to the removal. 28
U.S.C. § 1446(a). See Cramer v. Devera Mgmt.
Corp., 2004 WL 1179375, at *2 (D. Kan. May 27, 2004)
(“Courts have interpreted [§ 1446(a)] to establish
a unanimity rule whereby all defendants who have been served
must join in or consent to the notice of removal.”)
(citing cases). Consent is not required, however, when the
non-joining defendant has not been properly served at the
time the removal petition is filed. See Gillis v.
Louisiana, 294 F.3d 755 (5th Cir. 2002) (“[I]n
order to comply with the requirements of § 1446, all
served defendants must join in the removal petition
filed prior to the expiration of the removal period.”)
to the state court pleadings in this matter, an order
directing service by publication with respect to Martin was
issued by the Wagoner County District Court Judge on July 2,
2015. (Dkt. 2-4, at 21). An Amended Notice of Service of
Summons by Publication was issued by the Wagoner County
District Court Clerk on September 2, 2015, pursuant to 12
Okl. St. § 2004(C)(3). (Dkt. 2-4, at 30). Under §
2004(C)(3), service by publication is complete when notice is
published in a newspaper published in the county where the
petition is filed, one day a week for three consecutive
weeks. 12 Okl. St. §§ 2004(C)(3)(c)-(d).
and BDC do not dispute that service on Martin by publication
in accordance with the Oklahoma statute occurred. Rather,
they assert that Martin's consent to removal was not
required, because he has not appeared or responded to the
notice, and there is no evidence that Martin took actual or
constructive notice of service via publication. RVNB and BDC
argue that at least one Circuit court has held that such
circumstances meet the ...