Case 5:20-cv-00827-XR Document 10 Filed 08/21/20 Page 1 of 3
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`SAN ANTONIO DIVISION
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`SA-20-CV-00827-XR
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`ORDER
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`LEON MICHAEL ROY,
` Plaintiff
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`-vs-
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`LARRY POINTER, SWIFT
`TRANSPORTATION CO. OF
`ARIZONA, LLC,
` Defendants
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`On this date, the Court considered Plaintiff’s Motion to Remand (docket no. 8). After
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`careful consideration, the Court grants the motion.
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`Background
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`Plaintiff Leon Michael Roy filed this action on December 31, 2018 against Larry Pointer
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`and Swift Transportation Company of Arizona, LLC in state court for damages arising from a
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`motor vehicle collision. Plaintiff’s original petition specifically alleged that his damages as of the
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`time of filing did not exceed $75,000. Docket no. 9-1. On July 15, 2020, Defendant Swift
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`Transportation filed a Notice of Removal, asserting that it first became aware of the existence of
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`diversity jurisdiction on June 30, 2020 when Plaintiff testified at his deposition that his damages
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`were in excess of $375,000. Swift argued that its removal was therefore timely under 28 U.S.C. §
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`1446(b)(3), because it was filed within thirty days of the deposition.
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`On August 14, 2020, Plaintiff timely filed a motion a remand, arguing that remand is
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`required because (1) the amount-in-controversy requirement is not met; (2) the notice of removal
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`is untimely because it was filed more than one year after commencement of the lawsuit, and (3)
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`the notice of removal is procedurally defective because Defendant Larry Pointer did not consent
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`Case 5:20-cv-00827-XR Document 10 Filed 08/21/20 Page 2 of 3
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`to the removal. In response, Swift argues that the amount-in-controversy requirement is satisfied
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`and that removal is timely because Plaintiff acted in bad faith to prevent removal pursuant to 28
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`U.S.C. § 1446(c)(1). Swift also states that both Defendants consent to removal and provides
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`written consent.
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`Analysis
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`The Court need not decide the thorny issues of whether the amount-in-controversy
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`requirement is met or whether the removal was timely because Swift failed to timely provide
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`Pointer’s written consent to removal, rendering the removal procedurally defective and requiring
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`remand.
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`Under § 1446(b)(2)(A)’s unanimity requirement, “all defendants who have been properly
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`joined and served must join in or consent to the removal of the action” to federal court. “This
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`does not mean that each defendant must sign the original petition for removal,” but the Fifth
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`Circuit requires “some timely filed written indication from each served defendant . . . that it has
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`actually consented to such action.” Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262
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`n.11 (5th Cir. 1988). Thus, if written consent on the part of all defendants is lacking when the
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`thirty-day removal period elapses, the notice of removal is deemed defective and the case must
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`be remanded. Ortiz v. Young, 431 F. App’x 306, 307 (5th Cir. 2011).
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`Only Swift removed the case by filing the Notice of Removal, and Swift did not provide
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`a written consent from Pointer or indicate Pointer’s consent anywhere within the Notice of
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`Removal.1 Thus, Swift failed to timely provide written consent to removal by Pointer. It does not
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`matter that Swift and Pointer were represented by the same counsel. Smith v. Union Nat’l Life
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`1 The Court notes that it issued its Standing Order Concerning Removed Cases on July 15, 2020, and the Standing
`Order was filed on July 16. That Standing Order directs the removing defendant to, among other things, identify any
`defendant who had been served prior to the time of removal who did not formally join in the notice of removal and
`to provide copies of written consents, if any, if not already on file. Swift did not submit the required advisory in
`response to the Standing Order.
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`Case 5:20-cv-00827-XR Document 10 Filed 08/21/20 Page 3 of 3
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`Ins. Co., 187 F. Supp. 2d 635, 646 (S.D. Miss. 2001) (“Nor does the joint representation of the
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`removing and non-removing defendants by a single attorney create an implied joinder or consent
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`. . . .”). In response to the Motion to Remand, Defendants provided a signed written consent
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`dated August 19, but that consent was untimely. Crowley v. Amica Mut. Ins. Co., No. 12-775,
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`2012 WL 3901629, at *3 (E.D. La. Sept. 7, 2012)(“[C]ourts applying Getty Oil have remanded
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`cases for lack of written consent when the nonmoving defendants submitted affidavits attesting
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`to their consent after the 30-day period for removal had ended.”). Remand is required.
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`Conclusion
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`Plaintiff’s Motion to Remand (docket no. 8) is GRANTED. Plaintiff’s request for
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`attorney’s fees and costs is denied because the Court finds Swift had a good faith basis for
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`removal and simply made a procedural error.
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`This case is remanded pursuant to 28 U.S.C. § 1447(c), (d). The clerk is directed to
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`CLOSE this case.
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`It is so ORDERED.
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`SIGNED this August 21, 2020
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`_________________________________
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`XAVIER RODRIGUEZ
`UNITED STATES DISTRICT JUDGE
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