Noto v. Daimler Chrysler Corp., 2008 WL 609796 (E.D. La. March 3, 2008).
The plaintiff filed a petition in state court against 3 defendants seeking to establish a nationwide class, alleging that the gooseneck trailer hitch ball installed on his truck was defective causing a trailer he was pulling to smash into his truck. The petition seeks to hold the defendants liable in redhibition allowing for rescission of the sale and return of the sale price, plus the cost of repairs, attorneys’ fees and costs, and interest. Service of the petition was attempted on 2 of the 3 defendants; however, only one defendant was actually served (despite this, the sheriff certified that the second defendant was served
More than 6 months later, the defendants removed the case to federal court, alleging federal jurisdiction under CAFA. While the plaintiff concedes that CAFA does provide federal jurisdiction, he argues that the defendants’ removal of the case was not timely.
The court noted that any potential time period for removing the case to federal court could not begin until all defendants were properly served according to state law, which did not occur. The plaintiff argued that even if service was not proper, under the first-served defendant rule, the time for removal began when the first defendant was served and expired 30 days later.
The first-served defendant rule, a jurisprudential rule adopted by the Fifth Circuit, requires that multiple defendants all join in a removal petition within 30 days after the first defendant is served. While the Fifth Circuit has not addressed whether the first-served defendant rule applies to a case removed under CAFA, it has acknowledged that CAFA eliminates the standard requirements of unanimous consent among defendants and the one year removal deadline, pursuant to §1453(b). The court found that because the rationale behind the first-served defendant rule in the Fifth Circuit was unanimity of consent, which is eliminated by §1453(b), then the first-served defendant rule would also be eliminated.
Finally, the plaintiff argued that receipt of Rule to Show Cause from the state court setting the state court action for hearing constituted a “motion, order or other paper” under the second paragraph of §1446(b) from which removal could be effected, making the defendants’ removal untimely since not made within 30 days. The court found the plaintiff’s argument to be misplaced, noting that the second paragraph of §1446(b) only applies if the case is not removable with the initial pleading, which logically would require service of the initial pleading. Because all defendants were not properly served with the initial pleading, the court found that the plaintiff could not rely on the other paper provision to prove that the defendants’ removal was untimely.
Despite the plaintiff’s arguments, the court found removal to be timely and denied the plaintiff’s motion to remand.