GREEN v. WERNER ENTERPRISES INC

• Court: District Court, M.D. Georgia
• Decided: June 23, 2022
• Docket: 5:22-cv-00169
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION ALFRED GREEN and DIANNE GREEN, Plaintiffs, v. CIVIL ACTION NO. 5:22-cv-00169-TES WERNER ENTERPRISES, INC., and FERNANDO BATISTA, Defendants.

ORDER DENYING MOTION TO REMAND

Before the Court is Plaintiff Alfred and Dianne Green’s Motion to Remand [Doc. 13] their case arising from a motor vehicle collision back to the State Court of Houston County, Georgia. [Doc. 13-1, ¶ 1]. Prior to removal, Plaintiffs filed notice of their complaint under Georgia’s Uninsured Motorist Act, as required by O.C.G.A. § 33-7- 11(d), and subsequently served Defendants Werner Enterprises, Inc.; Fernando Batista; and State Farm Mutual Automobile Insurance Company—the uninsured motorist carrier in this case. [Doc. 13, p. 1]; see also [Doc. 1, p. 2]. A. Legal Standard Civil actions brought in state courts of which the federal courts have original jurisdiction may be removed by the defendant to a proper district court of the United

States. 28 U.S.C. § 1441(a). Original jurisdiction may be based on a federal question or on diversity of citizenship. 28 U.S.C. §§ 1331–32. The Court must look to a plaintiff’s complaint to determine whether removal was appropriate. See Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). The defendant bears the burden of proving that federal jurisdiction exists. See Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001); Kirkland v. Midland Mortg.

Co., 243 F.3d 1277, 1281 n.5 (11th Cir. 2001). Removal statutes are strictly construed, and all doubts regarding federal-court jurisdiction must be resolved in favor of a remand to state court. See Burns, 31 F.3d at 1095.

B. Plaintiffs’ Motion to Remand

Importantly, Plaintiffs do not argue that the Court should remand their case for a lack of subject-matter jurisdiction, i.e., for a lack of diversity jurisdiction. See generally [Doc. 13]; see also [Doc. 16, p. 1]. Instead, relying on Bailey v. Janssen Pharmaceutica, Inc., Plaintiffs base their request for remand on a lack of unanimity or consent from each defendant that had been served at the time of removal. 536 F.3d 1202, 1207 (11th Cir. 2008); see [Doc. 13, pp. 3–5]. “The unanimity rule requires that all defendants consent to

and join a notice of removal in order for it to be effective.” Bailey, 536 F.3d at 1207. According to Plaintiffs’ motion, only Defendants Werner and Batista joined in the Notice of Removal [Doc. 1]. [Doc. 13, p. 2]. Simply put, Plaintiffs argue that remand is

appropriate because State Farm did not consent to and join in removal. See, e.g., [Doc. 13, p. 5 (“Defendants [Werner and Batista] have not met their burden of showing there was consent and unanimity of all of the defendants prior to filing their notice of removal.”)].

However, as Defendants Werner and Batista argue in their Response1 [Doc. 16], “an uninsured motorist carrier is not a party to a lawsuit until ‘the insured first sue[s] and recover[s] a judgment against an uninsured motorist.” [Doc. 16, p. 4 (quoting State

Farm Mut. Auto Ins. Co. v. Noble, 430 S.E. 804, 805 (Ga. Ct. App. 1993))]. State Farm, accordingly, was not a proper party to Plaintiffs’ lawsuit at the time of removal.2 And since State Farm wasn’t, as Plaintiffs refer to it, Defendant Werner and Batista’s “co-

defendant,” its consent was not required in order to satisfy Bailey’s unanimity requirement. 536 F.3d at 1207; see, e.g., [Doc. 13, pp. 1–2, 5]. Accordingly, the Court DENIES Plaintiffs’ Motion to Remand [Doc. 13] based on their argument that unanimity and consent were lacking between “all of the defendants

in this case.” [Doc. 13, p. 5]. SO ORDERED, this 23rd day of June, 2022. S/ Tilman E. Self, III TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT

1 Defendants Werner and Batista filed their Response on June 8, 2022. Therefore, Plaintiffs had until June 22, 2022, to submit a Reply for the Court’s consideration. LR 7.3, MDGa. Plaintiffs did not file a Reply.

2 After Plaintiffs filed their motion to remand, they, along with Defendants Werner and Batista filed a “Consent Motion and Agreement for Dismissal of Uninsured/Underinsured Motorists Insurance Carrier Without Prejudice Pursuant to Yarbrough v. Dickinson” (“Yarbrough Dismissal”) [Doc. 19]. 359 S.E.2d 235 (Ga. Ct. App. 1987). The Court granted the parties’ Yarbrough Dismissal; thus, terminating State Farm as a party to this case. [Doc. 20].