Joseph Chavez, Harland Todecheenie, and Neal Tsosie v. Jack Chen, 1 Express, Inc., Top 1 Express, Inc., US Trucking Services, Inc., United Specialty Insurance Company, Platinum Transport Insurance RRG, Inc., All American Claims Solutions, Inc., Harish Kapur, Gary Paul Matharoo, Desiree Gonzalez, Paulina Villareal, Garrett Preszler, Kanwarpreet Gill, also known as Kanwar Gill, Bill Sanford, Esq., and Viviana Nieva

Summary

The United States District Court for the District of New Mexico grants Plaintiffs’ motion to remand a removed motor-vehicle-accident action. The court holds that removal violated the unanimity requirement because Defendant All American Claims Solutions, Inc. did not obtain the consent of properly joined and served Defendant Top 1 Express, Inc., and declines to adopt an exception based on efforts to obtain consent from a defaulting defendant. The court also finds no bad faith under 28 U.S.C. § 1446(c)(1), declines to award costs and fees, and remands the case to New Mexico state court.

Holdings

1. A properly joined and served defendant must join in or consent to removal under 28 U.S.C. § 1446(b)(2)(A). Because Top 1 Express was properly served, was not a nominal or formal party, and did not consent, AACS's removal violated the unanimity requirement and required remand.
2. The court declined to adopt an exception allowing a removing defendant to avoid the unanimity requirement merely by proving that it exhausted all reasonable efforts to obtain a properly served co-defendant's consent.
3. Plaintiffs did not act in bad faith to prevent removal by joining AACS more than one year after commencement of the state-court action; therefore, the one-year removal exception in § 1446(c)(1) did not permit removal.
4. Plaintiffs were not entitled to costs and attorney fees because AACS had an objectively reasonable basis for removal, even though removal ultimately failed.

Questions Presented

1. Whether removal was procedurally defective under the federal unanimity rule because properly joined and served Defendant Top 1 Express did not consent to removal.
2. Whether the court should adopt an exception excusing nonunanimous consent when the removing defendant has exhausted all reasonable efforts to obtain a co-defendant's consent.
3. Whether Plaintiffs acted in bad faith under 28 U.S.C. § 1446(c)(1) to prevent removal by joining AACS more than one year after commencement of the state-court action.
4. Whether Plaintiffs were entitled to costs and attorney fees under 28 U.S.C. § 1447(c).

Disposition

remanded