United States District Court, E.D. Arkansas, Western Division
ALTHA REAVES, Personal Representative of the Estate of Willetta Reaves and next of friend of Grace Bizzell, a minor; and MAYONNA BIZZELL PLAINTIFFS
TRANSPORT CORPORATION OF AMERICA, INC.; and JIMMIE MARTIN “MARTY” HARPER, JR. DEFENDANTS
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE.
Reaves, personal representative of the Estate of Willetta
Reaves and next friend of Grace Bizzell, a minor, and Mayonna
Bizzell brought this action in the Circuit Court of Pulaski
County, Arkansas against Transport Corporation of America,
Inc., and Jimmie Martin “Marty” Harper, Jr. The
suit arises out of a collision between a tractor-trailer,
owned by Transport Corporation of America, and driven by
Harper, with a vehicle driven by Willetta Reaves. The
tractor-trailer rear-ended Willetta Reaves’ car and she
died as a result. Transport Corporation of America removed
the case to this Court based on diversity jurisdiction. 28
U.S.C. § 1332. The parties do not dispute that complete
diversity exists and that the amount in controversy meets the
requirements. However, Reaves and Bizzell have filed a
motion to remand arguing that Harper has not joined the
motion to remove and Transport Corporation of America should
have stated why Harper did not join in the motion to remove.
Although Harper was not served, Reaves and Bizzell argue that
failure to state why Harper did not join the motion requires
the case to be remanded. For the following reasons the motion
to remand is denied.
may be removed from state court to federal court under 28
U.S.C. § 1441(a) where the district courts of the United
States have original jurisdiction. The defendant desiring to
remove the action must file a notice of removal
“containing a short and plain statement of the grounds
for removal, together with a copy of all process, pleadings,
and orders.” 28 U.S.C. § 1446(a). “When a
civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join
in or consent to the removal of the action.” 28 U.S.C.
Corporation of America filed a notice of removal and Harper
did not join. Document #5-1. The notice of removal does not
state the reason why Harper did not join in removal. Where
several defendants are jointly sued in a state court, the
suit cannot be removed to federal court unless all the
defendants join the removal. Wright v. Missouri Pac. R.
Co., 98 F.2d 34, 35 (8th Cir. 1938). The general rule is
“that a non-resident defendant, although he is charged
jointly with other defendants, need not be joined in removal
if he has not been served with summons.” Id.
at 35-36. The plaintiffs argue that although this is true,
Transport Corporation of America must state that Harper did
not join the removal because he was not served and without
this statement the case must be remanded.
Wright v. Missouri Pac. R. Co. the plaintiff
presented evidence to the district court that the non-joining
defendant actually had been served and the failure to file
the return of service was inadvertent. 98 F.2d at 36. The
court remanded the case because it “conclud[ed] that
the record before the district court was insufficient to
sustain the federal jurisdiction.” Id. It also
The situation before us has come about partly because the
plaintiff’s attorney has kept the alleged summons and
return without filing it, and partly because the railroad
company and the trustee failed to allege in the petition for
removal the ground on which they claimed the joinder of
Stacey Edwards to be unnecessary.
Id. The Eighth Circuit did not remand the case
because the defendant failed to explain it believed the other
defendant had not been served, the case was remanded because
evidence was presented that the other defendant had been
McMahan v. Fontenot the nonremoving defendant was served
the summons on the same day that the removing defendant was
served, but the removing defendant did not disclose why the
other defendant did not join the petition. 212 F.Supp. 812,
814 (W.D. Ark. Jan. 10, 1963). The court held that the case
must be remanded because the nonremoving defendant was served
and the motion to remove could not be amended. Id.
at 814-15. Likewise, in Heckleman v. Yellow Cab Transit
Co., the court held that “[t]he petition to remove
is fatally defective in that it failed to include any reason
for not including [the nonremoving defendant] and the record
discloses no such reason.” 45 F.Supp. 984, 985 (E.D.
Ill. Aug. 11, 1942). The nonremoving defendant was served two
days before the removing defendant filed its petition.
Id. at 985. All of the non-joining defendants in
these cases were actually served.
case, the petition to remove does not contain a reason why
Harper did not join the petition. However, unlike the other
cases, the parties do not dispute that Harper was not served.
The record before this Court is sufficient to uphold federal
jurisdiction because Harper was not served.
foregoing reasons, the motion to remand is DENIED. Document