On September 13, 2010, Magistrate Judge Toliver, in Johnson v. Randall’s Food Markets, issued an order remanding the case to Dallas County Court of Law No. 3. Judge Toliver found that the defendants (who were diverse from the plaintiffs) failed to timely remove the case to federal court within 30 days of proper notice that the case has become removable under 28 U.S.C. § 1446(b).
A couple of interesting points to note from Judge Toliver’s decision:
- “In the absence of waiver of the time limit by the plaintiff, or some equitable reason why that limit should not be applied, however, a defendant who does not timely assert the right to remove loses that right.” Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1988).
- Because all defendants must join in the removal petition, the general rule in the Fifth Circuit is that if the first-served defendant does not effect a timely removal, subsequently served defendants cannot remove. Id.
Because the first defendant served failed to file for removal within 30 days after it became apparent that the parties were diverse, the second, subsequently-served defendant was prohibited from removing the case (unless the court finds that plaintiffs’ conduct amounted to a waiver of the right to remand, which the court failed to find).
Notably, Judge Toliver found that defendants’ attempt to remove was not objectively reasonable in light of Fifth Circuit precedent, and awarded plaintiffs their attorneys’ fees and costs incurred as a result of the removal under 28 U.S.C. § 1447(c) (allowing the court to require “payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal”).
Denny Martin, of Denny R. Martin P.C. represented the plaintiffs. Margaret Mead of Gordon & Reese LLP represents defendant Randall’s Food Markets, and Peter Martin of Martin & Martin Law, PC represents defendant Retail Merchandising Solutions.