United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff’s Motion to Remand to
State Court (Doc. No. 12), filed in this matter on July 24,
2019. Having reviewed Plaintiff’s Motion and the
relevant record, the Court denies the Motion.
Plaintiff initiated this action in the District Court of
Oklahoma County, Oklahoma, against Defendants Great West
Casualty and Jerrod Malek Cope, individually and as an agent
of Decker Truck Lines. See Notice of Removal (Doc.
No. 1) at 1; Pet. (Doc. No. 1-2) at 1. On May 13, 2019,
Defendant Great West Casualty filed a Notice of Removal in
which it asserted that this Court had subject matter
jurisdiction over this action pursuant to title 28, section
1332 of the United States Code. See Notice of
Removal at 1. Defendant Great West Casualty additionally
stated that the other named defendants were not required to
consent to the removal because Plaintiff had not yet filed
proofs of service for them. See id.; 28
U.S.C. § 1446(b)(2)(A) (prescribing that only the
“defendants who have been properly joined and served
must join in or consent to the removal of the action”).
same day, Defendant Great West Casualty sought dismissal
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Def.’s Mot. Dismiss (Doc. No. 4).
Plaintiff confessed the motion, and the Court granted the
dismissal of Defendant Great West Casualty from this action.
See Pl.’s Resp. (Doc. No. 6); Order of July
24, 2019 (Doc. No. 11). Following this dismissal, Plaintiff
filed the instant motion, asserting that remand is required
because the sole defendant who sought removal has been
dismissed. See Pl.’s Mot. at 1-2.
Motion, Plaintiff does not argue that removal was improper in
the first instance. Nor does Plaintiff dispute the
representations, contained in the Notice of Removal, that
there is complete diversity of citizenship and that the sum
demanded in Plaintiff’s pleading exceeds $75, 000.
See Notice of Removal at 2. Rather, Plaintiff
requests remand because “no other parties are present
in the current litigation that requested removal or that have
asserted that this Court has jurisdiction.” Pl.’s
Mot. at 1-2.
as Plaintiff is arguing that the removal of this action was
rendered procedurally defective by the failure of the
remaining defendants to affirmatively consent to removal or
to demonstrate the propriety of removal after Defendant Great
West Casualty’s dismissal, Plaintiff’s argument
is unavailing for two reasons. First, the federal removal
statutes require that “[a] motion to remand the case on
the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after the filing of
the notice of removal.” 28 U.S.C. § 1447(c);
see Farmland Nat’l. Beef Packing Co., L.P. v. Stone
Container Corp., 98 Fed.Appx. 752, 756 (10th Cir. 2004)
(explaining that “lack of unanimous consent is a
procedural defect, not a jurisdictional defect”);
see also Notice of Removal at 1-3 (filed May 13,
2019). Because Plaintiff did not file his Motion until July
24, 2019, Plaintiff’s procedural argument is untimely.
the argument lacks merit. Under the federal removal statutes,
the procedure for removal requires the consent of only those
defendants “who have been properly joined and
served” at the time removal is sought. 28 U.S.C. §
1446(b)(2)(A). While a “defendant upon whom process is
served after removal” has a “right to move to
remand the case, ” 28 U.S.C. § 1448, the statutes
do not impose any additional requirement upon those
defendants, or upon unserved defendants, to consent to or
affirmatively demonstrate federal jurisdiction after the
action has been properly removed. Plaintiff offers no
authority suggesting that the dismissal of the removing
defendant alters that fact. See Lewis v. Rego Co.,
757 F.2d 66, 69 (3d Cir. 1985) (“[T]he removal statute
contemplates that once a case has been properly removed the
subsequent service of additional defendants who do not
specifically consent to removal does not require or permit
remand on a plaintiff’s motion.”); accord
Klima Well Serv., Inc. v. Hurley, No. 14-1250-SAC, 2014
WL 6819463, at *3 (D. Kan. Dec. 2, 2014).
additionally asserts that the dismissal of Defendant Great
West Casualty deprived the Court of subject matter
jurisdiction because it “will likely change the amount
in controversy listed in Plaintiff[’]s Petition.”
Pl.’s Mot. at 2. Yet, section 1446(c)(2) prescribes
that generally “the sum demanded in good faith in the
initial pleading shall be deemed to be the amount in
controversy.” 28 U.S.C. 1446(c)(2). In this case,
Plaintiff’s Petition alleges damages exceeding $75,
000. See Pet. at 2. “Once jurisdiction has
attached, ” as it has here, “events subsequently
defeating it by reducing the amount in controversy are
unavailing.” Miera v. Dairyland Ins. Co., 143
F.3d 1337, 1340 (10th Cir. 1998); see St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 290-91 (1938)
(“Events occurring subsequent to the institution of
suit which reduce the amount recoverable below the statutory
limit do not oust jurisdiction.”);
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S.
426, 428 (1991) (“We have consistently held that if
jurisdiction exists at the time an action is commenced, such
jurisdiction may not be divested by subsequent
events.”); Symes v. Harris, 472 F.3d 754, 758
(10th Cir. 2006) (“It has long been the rule that the
jurisdiction of the Court depends upon the state of things at
the time of the action brought, and that after vesting, it
cannot be ousted by subsequent events.” (internal
quotation marks omitted)); see also 14C Charles Alan
Wright, et al., Federal Practice and Procedure
§ 3725.2 (4th ed. 2019) (“Once a case that was
initiated in state court has been removed properly,
subsequent events that reduce the amount recoverable . . .
will not defeat the federal court’s subject-matter
Plaintiff does not contest, and the record does not reflect,
that removal was improper in the first instance, the Court
finds that the matter is properly before this Court.
foregoing reasons, Plaintiffs Motion to Remand to State Court
(Doc. No. 12) is DENIED.