Bradford Ross v. D & T Truck Transporters Inc

• Court: District Court, W.D. Washington
• Decided: January 22, 2025
• Docket: 2:24-cv-01410
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT WESMTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 NO. 2:24-cv-1410 JILL BRADFORD ROSS, 8 Plaintiff, ORDER (1) DENYING PLAINTIFF’S MOTION FOR REMAND; AND 9 v. (2) SUA SPONTE ORDERING DEFENDANTS TO SHOW CAUSE 10 D & T TRUCK TRANSPORTERS, INC.; WHY THIS MATTER SHOULD NOT GRADY L. AYERS; and J. DOES, Defendants. BE REMANDED ON OTHER 11 GROUNDS

12 13 This matter comes before the Court on a Motion for Remand filed by Plaintiff Jill Bradford 14 Ross, claiming a deficiency in Defendants’ Notice of Removal. Dkt. No. 13. Ross originally filed 15 her complaint in Skagit County Superior Court on July 23, 2024. She served Defendant Grady 16 Ayers with the summons and complaint on July 27, 2024, and Defendant D&T Truck Transporters, 17 Inc. (“D&T”) on August 6, 2024. Defendants filed the Notice of Removal on September 5, 2024, 18 under 28 U.S.C. §§ 1332, 1441, and 1446, claiming complete diversity of the parties. Dkt. No. 1. 19 Plaintiff seeks remand of this case, contending that the Notice of Removal was 20 procedurally deficient because D&T “failed to obtain or otherwise affirmatively demonstrate 21 Ayers’ joinder or consent to removal within its own 30-day removal period.” Pl.’s Mot. at 1. Under 22 28 U.S.C. § 1446(b)(2)(A), “all defendants who have been properly joined and served must join 23 24 ORDER DENYING MOTION TO REMAND 25 2 and a later-served defendant files a notice of removal, any earlier-served defendant may consent

3 to the removal even though that earlier-served defendant did not previously initiate or consent to 4 removal.” 28 U.S.C. § 1446(b)(2)(C). Plaintiff argues that strict compliance with the removal 5 statute is required, and that “Ayers did not submit a signed, written notice of consent to joinder,” 6 nor did the Notice of Removal “affirmatively state that Ayers joined or consented to removal,” 7 and the 30-day period for doing so has run. Pl.’s Mot. at 2. 8 The Notice of Removal, filed by counsel for both D&T and Ayers, states that “Defendants, 9 by and through their attorneys, . . . remove this action from Clark [sic] County Superior Court to 10 the United States District Court for the Western District of Washington at Seattle.” Not. of Rem. 11 at 1 (emphasis added). The Notice is captioned “Defendants’ Notice of Removal.” Id. (emphasis

12 added). These grammatical cues are sufficient to signify Ayers’ consent to the removal, 13 particularly as they were penned by Ayers’ own attorneys, and Plaintiff does not cite any authority 14 indicating Defendants must be held to a standard higher than this. In Prior v. Safeco Insurance 15 Company, for example, remand was appropriate because “[t]he Notice of Removal was not signed 16 by [one of the defendants], and there was no indication therein that it consented to or joined the 17 removal,” suggesting that a mere “indication” of consent could have been sufficient. 2023 WL 18 3720649, at *1 (W.D. Wash. May 30, 2023); see also Christiansen v. W. Branch Cmty. Sch. Dist., 19 674 F.3d 927, 933 (8th Cir. 2012) (cited in Prior, finding that the procedural defect was cured 20 when the late-removing defendant filed a motion to dismiss endorsing removal within the 30-day 21 period). The Court therefore denies Plaintiff’s Motion for Remand.

22 However, the Notice of Removal is deficient in another material respect; it fails to allege 23 the citizenship of either Ross or Ayers. The Notice alleges only that Plaintiff Ross is a “resident” 24 ORDER DENYING MOTION TO REMAND 25 1 || of Washington, and that Defendant Ayers is a “resident” of Nebraska. Not. of Rem. at 2 (alleging 2 ||that D&T is a “Nebraska corporation” but stating only that “Plaintiff is a resident of Washington 3 || but Defendants are residents of Nebraska.”). The diversity jurisdiction statute, 28 U.S.C. § 1332, 4 based on diversity of citizenship, not residency. (“The district courts shall have original 5 ||jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of 6 $75,000, exclusive of interest and costs, and is between citizens of different States”). In the Ninth 7 Circuit, “failure to specify Plaintiffs’ state citizenship [is] fatal to Defendants’ assertion of 8 || diversity jurisdiction.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001) 9 || [The diversity jurisdiction statute, 28 U.S.C. § 1332, speaks of citizenship, not of residency. .. . 10 || A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a 11 || citizen of that state.”). 12 Accordingly, the Court hereby orders Defendants to show cause why this matter should 13 be remanded on these grounds. Defendants may do so by filing an amended Notice of Removal, 14 || correctly claiming diversity by alleging the citizenship of the parties, and shall do so, if at all, no 15 || later than 10 days from the date of this Order. Failure to file a timely and adequate amended Notice 16 Removal will result in the sua sponte remand of this matter to Skagit County Superior Court. 17 For the foregoing reasons, Plaintiff's Motion to Remand is DENIED. Defendants are 18 || Ordered to Show Cause, as set forth above. 19 DATED this 22"4 day of January, 2025. 20 1 Asner eu, Barbara Jacobs Rothstein 22 U.S. District Court Judge 23 24 ORDER DENYING MOTION 8 REMAND