CASES (2023)

Inzunza v. Naranjo

Court of Appeal of California, Second Appellate District, Division Four

August 21, 2023, Opinion Filed

JOSE R. INZUNZA et al., Defendants and Appellants, v. MARIA NARANJO et al., Plaintiffs and Respondents.

Prior History: [*1] APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC678942, Mel Red Recana, Judge.

Disposition: Reversed in part and remanded with directions.

Case Summary

Overview

HOLDINGS: [1]-In a wrongful death action arising from a collision, the trial court prejudicially erred under Code Civ. Proc., § 2033.410, by imputing the driver’s deemed admissions to his employer to establish its liability and precluding the employer from presenting contrary evidence as to liability and comparative fault. An agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent; [2]-For purposes of remand, the court found that the instruction on stepchild standing correctly used present tense in the introductory sentence and stated that a stepchild is permitted to bring a claim for wrongful death if they are dependent, to some extent, upon the decedent for the necessaries of life.

Outcome

Reversed in part and remanded with directions.

LexisNexis® Headnotes

Civil Procedure > … > Methods of Discovery > Requests for Admissions > Content & Form of Admissions

Civil Procedure > … > Methods of Discovery > Requests for Admissions > Responses to Requests for Admissions

Civil Procedure > … > Methods of Discovery > Requests for Admissions > Effect of Admissions

HN1 Requests for Admissions, Content & Form of Admissions

When a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. Code Civ. Proc., § 2033.280, subd. (b). The court shall make this order, unless it finds the party to whom requests for admission have been directed has served, before the hearing on the motion, a proposed response that substantially complies with the discovery statutes. § 2033.280, subd. (c). A deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein. Any matter deemed to have been admitted is conclusively established against the party making the admission but is binding only on the party that made the admission. Code Civ. Proc., § 2033.410, subds. (a) & (b).

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Governments > Legislation > Interpretation

Civil Procedure > Appeals > Standards of Review > De Novo Review

Civil Procedure > Appeals > Standards of Review > Questions of Fact & Law

HN2 Standards of Review, Abuse of Discretion

Generally, a trial court’s ruling on an in limine motion is reviewed for abuse of discretion. However, statutory construction is a question of law the court decides de novo.

Governments > Legislation > Interpretation

HN3 Legislation, Interpretation

The court begins with the plain language of the statute. If the terms of the statute are unambiguous, the court presumes the lawmakers meant what they said, and the plain meaning of the language governs.

Torts > Public Entity Liability > Liability > Vicarious Liability

HN4 Liability, Vicarious Liability

Vicarious liability of an employer is wholly derivative of the employee’s fault. If the employee is not at fault, the employer is not vicariously liable.

Governments > Courts > Judicial Precedent

HN5 Courts, Judicial Precedent

An opinion is only authority for those issues actually considered or decided.

Civil Procedure > … > Pretrial Judgments > Default & Default Judgments > Default Judgments

HN6 Default & Default Judgments, Default Judgments

Admissions implied from the default of one defendant ordinarily are not binding upon a codefendant who, by answering, expressly denies and places in issue the truth of the allegations thus admitted by the absent party. A party’s default does not bind nondefaulting codefendants, even when the basis for the action against the codefendants is vicarious liability arising from the acts of the defaulting defendant.

Business & Corporate Law > … > Authority to Act > Contracts & Conveyances > Liability of Principals

HN7 Contracts & Conveyances, Liability of Principals

An agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent.

Civil Procedure > … > Pretrial Judgments > Default & Default Judgments > Default Judgments

HN8 Default & Default Judgments, Default Judgments

Where there are two or more defendants and the liability of one is dependent upon that of the other, the default of one of them does not preclude the defaulting defendant having the benefit of the codefendants establishing, after a contested hearing, the nonexistence of the controlling fact; in such case the defaulting defendant is entitled to have judgment in his or her favor along with the successful contesting defendant.

Torts > Wrongful Death & Survival Actions > Potential Plaintiffs

HN9 Wrongful Death & Survival Actions, Potential Plaintiffs

Under Code Civ. Proc., § 377.60, subd. (b)(1), stepchildren of the decedent may bring a wrongful death action if they were dependent on the decedent. For purposes of this subdivision, dependence refers to financial support at the time of decedent’s death, or at most, two years before the decedent’s death.

Headnotes/Summary

Summary

CALIFORNIA OFFICIAL REPORTS SUMMARY

In a wrongful death action arising from a collision, the jury returned a verdict against the driver of a tractor-trailer and his employer. (Superior Court of Los Angeles County, No. BC678942, Mel Red Recana, Judge.)

The Court of Appeal reversed the judgment against the employer and remanded for new trial, holding that the trial court prejudicially erred under Code Civ. Proc., § 2033.410, by imputing the driver’s deemed admissions to the employer to establish its liability and precluding the employer from presenting contrary evidence as to liability and comparative fault. An agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent. For purposes of remand, the court held that the instruction on stepchild standing in a wrongful death case correctly used present tense in the introductory sentence and stated that a stepchild is permitted to bring a claim for wrongful death if they are dependent, to some extent, upon the decedent for the necessaries of life. (Opinion by Currey, P. J., with Collins, J., and Zukin, J., concurring.)

Headnotes

CALIFORNIA OFFICIAL REPORTS HEADNOTES

CA(1)[] (1)

Discovery and Depositions § 27—Deemed Admissions—Scope.

When a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted (Code Civ. Proc., § 2033.280, subd. (b)). The court shall make this order, unless it finds the party to whom requests for admission have been directed has served, before the hearing on the motion, a proposed response that substantially complies with the discovery statutes (§ 2033.280, subd. (c)). A deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein. Any matter deemed to have been admitted is conclusively established against the party making the admission but is binding only on the party that made the admission (Code Civ. Proc., § 2033.410, subds. (a) & (b)).

CA(2) (2)

Appellate Review § 126—Scope—In Limine Motion—Statutory Construction.

Generally, a trial court’s ruling on an in limine motion is reviewed for abuse of discretion. However, statutory construction is a question of law the court decides de novo.

CA(3) (3)

Statutes § 30—Construction—Plain Meaning.

CA(4) (4)

Employer and Employee § 26—Vicarious Liability.

Vicarious liability of an employer is wholly derivative of the employee’s fault. If the employee is not at fault, the employer is not vicariously liable.

CA(5) (5)

Courts § 45—Stare Decisis.

An opinion is only authority for those issues actually considered or decided.

CA(6) (6)

Discovery and Depositions § 27—Deemed Admissions—Scope—Vicarious Liability—Contrary Evidence.

In a wrongful death action arising from a collision, the trial court prejudicially erred by imputing the driver’s deemed admissions to his employer to establish its liability and precluding the employer from presenting contrary evidence as to liability and comparative fault. An agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent.

[Cal. Forms of Pleading and Practice (2023) ch. 196, Discovery: Requests for Admissions, § 196.17.]

CA(7) (7)

Judgments § 13—Default—Codefendants.

CA(8) (8)

Wrongful Death § 7—Stepchildren—Dependence.

Counsel: Locke Lord, Susan A. Kidwell; Clark Hill and Pamela A. Palmer for Defendant and Appellant CR GTS, Inc.

Clark Hill, Dean Olson, Pamela Palmer; Greines, Martin, Stein & Richland, Robert A. Olson and Laura G. Lim for Defendant and Appellant Jose R. Inzunza.

California Truck Injury Law and Katherine Harvey-Lee for Plaintiffs and Respondents.

Judges: Opinion by Currey, P. J., with Collins, J., and Zukin, J., concurring.

Opinion by: Currey, P. J.

Opinion

CURREY, P. J.—

INTRODUCTION

Jose I.V. Naranjo died after his pick-up truck collided with a tractor-trailer driven by Jose R. Inzunza (Inzunza) for CR GTS, Inc. (CRGTS), an interstate motor carrier. Jose’s surviving spouse (Maria ), their four adult children (Griselda, Araceli, Jose Jr., and Oscar), and Jose’s two adult stepchildren (Carla and Luis) (collectively, plaintiffs)¹ brought this wrongful death action against defendants and appellants Inzunza and CRGTS (collectively, defendants).

The jury returned a verdict in favor of plaintiffs. CRGTS appeals from the judgment, contending: (1) the trial court prejudicially erred by precluding [*2] it from contesting liability and comparative fault and, instead, imputing Inzunza’s deemed admissions to CRGTS to establish its liability; and (2) the verdicts in favor of the stepchildren must be vacated because no substantial evidence supports a finding that they were financially dependent on the decedent at the time of his death—an essential element of standing to bring a wrongful death claim under Code of Civil Procedure section 377.60, subdivision (b)(1).² Inzunza separately appeals from the judgment, contending: (1) the jury’s award of noneconomic damages to Maria was excessive as a matter of law (CRGTS joins this argument); and (2) in addition to the lack of evidence to support the stepchildren’s standing, the trial court also improperly instructed the jury regarding the necessary elements for stepchild standing in a wrongful death action.

For the reasons discussed below, we agree with CRGTS’s first contention and conclude the trial court prejudicially erred by precluding CRGTS from presenting evidence contesting liability and of comparative fault. Accordingly, we reverse the judgment against CRGTS and remand the action for a new trial against CRGTS. The judgment against Inzunza is set aside pending the outcome of the new trial. We [*3] address defendants’ additional contentions only to the extent they regard issues likely to arise on retrial.

FACTUAL AND PROCEDURAL BACKGROUND³

In December 2015, Jose was involved in a fatal car accident involving a tractor trailer driven by Inzunza and owned by CRGTS. According to eyewitnesses, a portion of the tractor trailer was partially blocking the left lane of a divided highway when Jose’s vehicle collided with it.

Plaintiffs filed a wrongful death action against Inzunza and CRGTS, alleging a single cause of action for negligence.⁴ They alleged defendants were negligent and proximately caused Jose’s fatal injuries. They further alleged Inzunza was driving the tractor trailer while working for CRGTS in the course and scope of his employment.

Plaintiffs later propounded requests for admission on Inzunza. The requests sought the following admissions, among others: Inzunza was negligent, Inzunza’s negligence caused the accident, no negligence on the part of the decedent caused or contributed to the fatal injuries he sustained, and Inzunza’s negligence proximately caused the fatal injuries to decedent. Despite receiving multiple extensions of time to respond, Inzunza failed to serve any [*4] responses to the requests. Thus, plaintiffs filed a motion for an order that the truth of each matter specified in the requests for admission propounded on Inzunza be deemed admitted under section 2033.280, subdivision (b).⁵ In opposition to the motion, Inzunza’s counsel explained they lost contact with Inzunza despite multiple attempts to reach him, including by hiring two private investigators. The court found that “[w]hile [Inzunza’s] counsel demonstrates that they made reasonable efforts to locate and contact [Inzunza], [Inzunza’s] counsel does not show [Inzunza] is not attempting to evade the lawsuit or discovery demand.” On that basis, the court granted plaintiffs’ motion, and “deem[ed] admitted the truth of the matters set forth in Requests for Admission, Set One, to defendant Jose R. Inzunza.”

Plaintiffs also propounded requests for admission on CRGTS. Several of the requests were the same as those propounded on Inzunza, including: admit that Inzunza caused or contributed to the accident, admit Inzunza was negligent, admit the negligence of Inzunza was the cause of the fatal injuries to Jose, and admit no negligence on the part of Jose caused or contributed to the fatal injuries he sustained. CRGTS provided [*5] verified responses denying these requests.⁶

Before trial, plaintiffs filed a motion in limine to preclude defendants “from offering evidence, expert opinion, exhibits, writings, testimony, reference or argument contrary to the Requests for Admissions propounded to [Inzunza] which were deemed admitted by court order … .” Plaintiffs argued the admissions by Inzunza conclusively established that Inzunza caused the accident and Jose bore no comparative fault. Thus, according to plaintiffs, “the court must exclude any opinion testimony by … experts, or indeed any other evidence or argument that conflicts or casts doubt on the admitted liability of [Inzunza].” CRGTS filed its own motion in limine for “an order permitting evidence regarding liability … as to … CRGTS . …” After hearing argument, the trial court granted plaintiffs’ motion and denied CRGTS’s motion on the ground it was moot. The trial court explained that CRGTS could present evidence that Inzunza was acting beyond the scope of his employment, and therefore, CRGTS is not vicariously liable. The court ruled CRGTS could not, however, present evidence of comparative fault.

Just before the start of trial, the court [*6] heard argument on how to implement its decision to grant plaintiffs’ motion in limine to preclude evidence contrary to Inzunza’s deemed admissions. CRGTS’s counsel explained: “[W]e had three eyewitnesses … who had been deposed. … We were prepared to provide their testimony that it appeared that the decedent was not paying attention; he never put his brakes on, they saw the vehicle but somehow the decedent didn’t see or react to the vehicle.” In response, plaintiffs’ counsel argued Inzunza’s deemed admissions “precluded any evidence coming in that would contradict those deemed admissions,” and that meant that “not CRGTS, not [p]laintiffs, not anybody [sic] can bring in evidence contrary [to] or contesting deemed admissions.” The trial court agreed with plaintiffs.

At trial, plaintiffs read Inzunza’s deemed admissions to the jury. Plaintiffs also called two of Jose’s grandchildren, his two stepchildren, his four children, his surviving spouse, and a damages expert to testify. Unable to contest that Inzunza was entirely at fault for the accident, defendants called only a damages expert to testify about the value of Jose’s household services.

The jury returned a verdict in favor [*7] of plaintiffs. The jury determined Inzunza was negligent and his negligence was a substantial factor in causing harm to Jose and plaintiffs. The jury also determined Inzunza was the agent of CRGTS and was acting within the scope of his agency when he harmed Jose and plaintiffs. The jury awarded a total of $7,619,000 to plaintiffs, including Jose’s two adult stepchildren. The court entered judgment on the verdict, holding CRGTS and Inzunza jointly and severally liable.

Defendants moved for a new trial and for partial judgment notwithstanding the verdict. The court denied both motions. CRGTS and Inzunza each appealed from the final judgment.

DISCUSSION

1. Inzunza’s Deemed Admissions Do Not Preclude CRGTS From Introducing Evidence Contrary to Those Admissions

A. Governing Principles and Standard of Review

HN1 CA(1) (1) When a party to whom requests for admission are directed fails to serve a timely response, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. …” (§ 2033.280, subd. (b).) The court “shall make this order,” unless it finds the party to whom requests for admission have been directed has served, before [*8] the hearing on the motion, a proposed response that substantially complies with the discovery statutes. (§ 2033.280, subd. (c).) “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979 [90 Cal. Rptr. 2d 260, 987 P.2d 727].) Any matter deemed to have been admitted “is conclusively established against the party making the admission” but “is binding only on th[e] party” that made the admission. (§ 2033.410, subds. (a) & (b).)

CA(2) (2) HN2 “‘Generally, a trial court’s ruling on an in limine motion is reviewed for abuse of discretion.’” (Appel v. Superior Court (2013) 214 Cal.App.4th 329, 336 [153 Cal. Rptr. 3d 798].) Here, however, the trial court’s order was predicated on its interpretation of section 2033.410. We therefore exercise de novo review. (Ibid [“‘Statutory construction is a question of law we decide de novo’”].)

B. Analysis

Plaintiffs acknowledge, as they must, that deemed admissions are conclusively established only against the party making the admission. (§ 2033.410, subds. (a) & (b).) Plaintiffs nevertheless contend the trial court correctly ruled CRGTS was also precluded from introducing evidence on the issues of liability and comparative fault because that evidence would directly contradict Inzunza’s deemed admissions, and CRGTS’s liability is merely derivative of Inzunza’s [*9] based on the doctrine of vicarious liability. CRGTS counters that precluding it from introducing evidence contrary to Inzunza’s deemed admissions effectively makes Inzunza’s admissions binding on CRGTS. CRGTS explains that because it is vicariously liable for Inzunza’s tortious conduct, prohibiting it from introducing evidence of liability and comparative fault imputes Inzunza’s failure to respond to requests for admission to CRGTS in violation of section 2033.410, subdivisions (a) and (b). For the reasons discussed below, we agree with CRGTS.

HN3 CA(3) (3) We begin with the plain language of the statute. (Estate of Griswold (2001) 25 Cal.4th 904, 911 [108 Cal. Rptr. 2d 165, 24 P.3d 1191] [“If the terms of the statute are unambiguous, we presume the lawmakers meant what they said, and the plain meaning of the language governs”].) As noted above, section 2033.410 provides, in relevant part, that any matter deemed admitted “is conclusively established against the party making the admission” and is “binding only on that party.” (§ 2033.410, subds. (a) and (b), italics added.) It is undisputed that Inzunza failed to respond to plaintiffs’ requests for admission propounded on him, and the trial court correctly deemed the matters in the requests admitted by Inzunza. It is also undisputed, however, that CRGTS timely responded to plaintiffs’ requests for admission, [*10] and denied some of the same requests as those deemed admitted by Inzunza (i.e., that Inzunza negligently caused the accident and that Jose was not comparatively at fault). The basis of plaintiffs’ action against CRGTS is vicarious liability arising from the acts of Inzunza. CA(4) (4) HN4 Vicarious liability of an employer is wholly derivative of the employee’s fault. If the employee is not at fault, the employer is not vicariously liable. (See Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1426 [8 Cal. Rptr. 3d 668] [“[v]icarious liability of an employer is not based on fault and is wholly derivative”].) Thus, by precluding CRGTS from introducing evidence contesting liability, the trial court saddled it with Inzunza’s deemed admissions—making his admissions of fault binding not only on Inzunza, but also CRGTS, in violation of section 2033.410.

CA(5) (5) Despite the clear language of the statute, plaintiffs argue “[u]nanimous authorities preclude any party from introducing evidence to contest deemed admissions being held against the party who made them.” (Italics added.) There are two problems with this argument. First, plaintiffs appear to rely on Murillo v. Superior Court (2006) 143 Cal.App.4th 730 [49 Cal. Rptr. 3d 511] (Murillo) and People v. $2,709 United States Currency (2014) 231 Cal.App.4th 1278 [180 Cal. Rptr. 3d 705] ($2709 United States Currency) for the proposition that section 2033.410 prevents all parties from introducing evidence contrary to deemed admissions. The courts in those cases stated the “general [*11] rule [that] an admission is conclusive in the action as to the party making it” and “no contradictory evidence may be introduced.” (Murillo, supra, 143 Cal.App.4th at p. 736; $2709 United States Currency, supra, 231 Cal.App.4th at p. 1286.) Neither case, however, involved multiple defendants. Thus, the courts in Murillo and $2709 United States Currency had no occasion to address the issue here, i.e., whether a defendant may introduce evidence contrary to a codefendant’s deemed admissions to demonstrate the party’s (as opposed to codefendant’s) non-liability. (See Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1076 [135 Cal. Rptr. 2d 361, 70 P.3d 351] [“‘It is a well-established rule that HN5[] an opinion is only authority for those issues actually considered or decided’”].)

Second, contrary to plaintiffs’ assertion, Inzunza’s deemed admissions were, in practical effect, used against a party that denied the very same requests. As discussed above, CRGTS is vicariously liable for its agent’s negligence if the agent was acting within the scope of his agency. (See Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 502 [288 Cal. Rptr. 3d 1, 501 P.3d 211].) But Izunza was not acting as CRGTS’s agent when he failed to timely deny the requests for admissions addressed to him. Thus, while it is fair to hold CRGTS liable for Inzunza’s actual actions and inactions during the course and scope of his employment as its agent, it is unfair to hold CRGTS liable for deemed admissions of fault [*12] resulting from Inzunza’s failure to timely respond to the requests for admissions.

We likewise reject plaintiffs’ argument that the jury instructions preclude any party from introducing evidence contrary to the deemed admissions of one defendant. The instruction given to the jury on requests for admission, California Civil Jury Instruction (CACI) No. 210, provides: “Before trial, each party has the right to ask another party to admit in writing that certain matters are true. If the other party admits those matters, you must accept them as true. No further evidence is required to prove them.” But nothing in the jury instruction states the jury must accept those matters as true as against a party who denied the same requests.⁷

The parties have not directed us to, and we have not located, a case directly addressing the issue presented, i.e., whether the deemed admissions of an agent preclude the principal from introducing evidence of liability and comparative fault. In an analogous context involving defaulting defendants, however, courts have held that admissions implied from the default of one defendant are not binding on a codefendant who answered, and expressly denied, the allegations in the complaint.

For example, in Taylor v. Socony Mobil Oil Co. (1966) 242 Cal.App.2d 832, 833 [51 Cal. Rptr. 764] (Taylor), the plaintiff [*13] sued Socony Mobil and its employee for malicious prosecution. The employee failed to answer the complaint and his default was entered, but Socony Mobil answered, “denying all material allegations of the complaint.” (Ibid.) The action went to trial against Socony Mobil and at the conclusion of plaintiff’s case, the trial court granted Socony Mobil’s motion for nonsuit. (Ibid.) On appeal, the plaintiff did “not seriously argue that he presented testimony constituting a prima facie showing of lack of probable cause or of malice” but argued “proof of these issues is supplied by the pleadings” because the employee admitted the allegations in the pleadings by failing to answer the complaint. (Id. at pp. 833–834.) The Court of Appeal affirmed the judgment, explaining: “The validity of plaintiff’s argument rests upon his major premise that an admission implied from the default of one defendant is binding upon an answering codefendant who has denied the relevant allegations of the complaint. His position is untenable.” (Id. at p. 834.) HN6[] Rather, “the correct rule … [is] ‘ … that admissions implied from the default of one defendant ordinarily are not binding upon a codefendant who, by answering, expressly denies and [*14] places in issue the truth of the allegations thus admitted by the absent party.’” (Ibid.)

Similarly, in Western Heritage Insurance Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1199–1200 [132 Cal. Rptr. 3d 209] (Western Heritage), the court held an intervening insurer was permitted to litigate the issue of liability notwithstanding its insured’s default. The court explained: “A party’s default does not bind nondefaulting codefendants, even when the basis for the action against the codefendants is vicarious liability arising from the acts of the defaulting defendant.” (Id. at p. 1211.)

Plaintiffs’ attempt to distinguish these cases is unavailing. First, plaintiffs claim Taylor and Western Heritage involved “default[ing] parties with wildly different procedural postures and fact patterns.” They point to the fact that in Taylor, the defaulting employee never answered the complaint or appeared in the case, and in Western Heritage, the employee’s answer had been stricken at the plaintiff’s request. We fail to understand the significance of these distinctions. Whether the defendant fails to answer the complaint, or to respond to requests for admission, facts are established by his or her failure to respond. Thus, the principles expressed in Taylor and Western Heritage should equally apply here (or perhaps with even greater force in the deemed admissions context) because the controlling statute [*15] explicitly states admissions by one party are “binding only on that party[.]” (§ 2033.410, subd. (b).)

Next, plaintiffs contend CRGTS “misapplies another holding in Taylor.” We disagree. In Taylor, as an additional reason in support of its holding, the court explained that, “under the rules of evidence[,]” declarations of an agent are admissible only when made during the course of his agency and at the time the event occurred. (Taylor, supra, 242 Cal.App.2d at p. 834.) The admissions in Taylor, the court explained, were made not only after the event occurred, but also after his employment had terminated. (Ibid.) Thus, the employee’s admissions implied from his default could not bind his employer. (Ibid.) So too, here. Inzunza’s admissions were deemed to have been made long after the accident in 2015. This additional point in Taylor, therefore, lends further support to CRGTS’s argument that the principles in Taylor should apply here.

HN7[] CA(6)[] (6) In sum, we conclude an agent’s deemed admissions do not bind the principal codefendant, even when the basis for the action against the principal codefendant is vicarious liability arising from the acts of the agent. ⁸ To hold otherwise would directly contradict the plain language of section 2033.410. The trial court therefore erred by precluding CRGTS from introducing [*16] evidence of non-liability and comparative fault. This error clearly was prejudicial. We therefore reverse the judgment against CRGTS and remand for a new trial. CA(7)[] (7) The judgment against Inzunza must be set aside pending the outcome of that trial. (See Adams Mfg. & Engineering Co. v. Coast Centerless Grinding Co. (1960) 184 Cal.App.2d 649, 655 [7 Cal. Rptr. 761] [“[W]here HN8[] there are two or more defendants and the liability of one is dependent upon that of the other, the default of one of them does not preclude his having the benefit of his codefendants establishing, after a contested hearing, the nonexistence of the controlling fact; in such case the defaulting defendant is entitled to have judgment in his favor along with the successful contesting defendant”]; see also Western Heritage, supra, 199 Cal.App.4th at p. 1210, fn. 18 [“[I]f the action is still pending against a party which may be jointly liable with the defaulting insured, it is improper to enter judgment against the defaulting defendant while the action remains pending against the other defendant”].)

2. Additional Contentions of Error at Trial

In light of our conclusion that the case must be remanded for a new trial, we need not address defendants’ other contentions (i.e., no substantial evidence that the stepchildren were financially dependent on the decedent at the time of his death, and the [*17] noneconomic damages awarded to Maria were excessive as a matter of law). To assist the parties and the trial court, however, we address Inzunza’s instructional error contention because it is likely to arise on retrial.

CA(8) (8) Inzunza contends the trial court’s instruction on stepchild standing contained the wrong standard. HN9 Under section 377.60, subdivision (b)(1), stepchildren of the decedent may bring a wrongful death action “if they were dependent on the decedent[.]” For purposes of this subdivision, dependence refers to financial support at the time of decedent’s death, or at most, two years before the decedent’s death. (See, e.g., Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1445, 1447–1148 [111 Cal. Rptr. 2d 534].)

The trial court gave the following instruction, proposed by plaintiffs: “Under California law, a stepchild is permitted to bring a claim for wrongful death if they are dependent, to some extent, upon the decedent for the necessaries of life. No strict formula can be applied to determine this. If a stepchild received financial support from their parent which helped them in obtaining the things which one cannot and should not do without, then that stepchild is dependent upon their parent and is qualified to bring a wrongful death claim. Such things may include, but are not limited to, shelter, [*18] clothing, food, utilities, car payments, medical treatment, and other customary living expenses.” Inzunza asserts the instruction “erroneously implied that dependence could occur at any point in the stepchild’s life” rather than “present dependence.” (Original italics.) He argues defendants’ proposed instruction included the necessary temporal restriction. Their proposed instruction provided, in part: “[I]n order for you to award damages to either [Carla or Luis], you must find that either stepchild was dependent on the decedent. Dependence is defined as financial support, ‘actually dependent, to some extent, upon the decedent for necessaires of life … which aids them in obtaining the things, such as shelter, clothing, food and medical treatment which one cannot and should not do without.’”

We are unpersuaded. Indeed, we find defendants’ proposed instruction is not any clearer on the temporal issue than the instruction given. We therefore conclude the trial court did not err by giving plaintiffs’ proposed instruction, which correctly used present tense in the introductory sentence: “[A] stepchild is permitted to bring a claim for wrongful death if they are dependent, to some extent, [*19] upon the decedent for the necessaries of life.” (Italics added.)

DISPOSITION

The judgment against CRGTS is reversed and the matter is remanded for a new trial against CRGTS. The judgment against Inzunza is set aside pending the outcome of that trial. In the event plaintiffs decide not to retry the action, the trial court is instructed to enter a new judgment against Inzunza only. Assuming that happens, this opinion does not prejudice Inzunza’s right to appeal from the new judgment, and renew his arguments raised in this appeal that we have not decided (i.e., the noneconomic damages awarded to Maria were excessive as a matter of law and the stepchildren lacked standing to bring a wrongful death claim) on the ground those arguments may be moot depending on whether plaintiffs retry the case. CRGTS is awarded its costs on appeal.

Collins, J., and Zukin, J., concurred.

End of Document

¹Because the decedent and some of the plaintiffs share a surname, we use their first names when referring to them individually to avoid confusion.

²All further undesignated statutory references are to the Code of Civil Procedure.

³Except for background facts included for context, we limit our recitation of the facts to those relevant to the issues we are deciding.

⁴Plaintiffs also sued Kershaw Fruit & Cold Storage, Inc., and later added Carlos Gonzalez as a defendant. Neither party remained in the case at the time of trial.

⁵Section 2033.280, subdivision (b) states, in relevant part: If a party to whom requests for admission are directed fails to serve a timely response, the “requesting party may move for an order that … the truth of any matters specified in the requests be deemed admitted … .”

⁶CRGTS originally provided unverified responses to the requests for admission, and plaintiffs obtained an order from the court deeming the requests admitted based on the “incomplete,” “evasive,” and unverified responses. It is undisputed, however, that the parties entered into a stipulation under which the order deeming the requests admitted was withdrawn, and CRGTS ultimately served verified responses to the requests for admission.

⁷We note that, in brackets, CACI No. 210 states: “However, these matters must be considered true only as they apply to the party who admitted they were true.” And, in the directions for use of the instruction, it states: “The bracketed phrase should be given if there are multiple parties.” It appears on the record before us that neither party requested this sentence be included in the instruction. On retrial, in accordance with the directions for use of the instruction, the bracketed sentence should be included.

⁸We note other jurisdictions have reached the same conclusion. (See, e.g., Riberglass, Inc. v. Techni-Glass Industries, Inc. (11th Cir. 1987) 811 F.2d 565, 566–567 [Even where the liability of a guarantor depends on the liability of a co-party, deemed admissions of the latter that it is indebted to the creditor do not justify the entry of judgment against the guarantor who has responded sufficiently to requests for admissions]; see also Alipour v. State Auto. Mut. Ins. Co. (N.D. Ga. 1990) 131 F.R.D. 213, 215–216, fn. 3 [even in cases involving defendants whose rights or liabilities are derivative of the party who failed to respond to material admissions, the deemed admissions of one defendant are not binding on the codefendant].)

Baker v. Amazon Logistics, Inc.

United States District Court for the Eastern District of Louisiana

July 26, 2023, Decided; July 26, 2023, Filed

CIVIL ACTION NO. 23-2078 SECTION M (2)

Reporter

2023 U.S. Dist. LEXIS 129651 *

TAMEICA BAKER, et al. VERSUS AMAZON LOGISTICS, INC., et al.

Core Terms

removal, non-removing, notice, properly join, joined, unanimity, exceptional circumstances, district court, state-court, diligence, time of removal, diversity, emails, consented

Counsel: [*1] For Tameica Baker, Individually and on behalf of her deceased husband, Alrick Baker, Alrick Baker, Jr., Individually and on behalf of her deceased father, Alrick Baker, Kalila Baker, Individually and on behalf of her deceased father, Alrick Baker, Shushana Edwards, on behalf of the Minor Children, A. B. and A. B, Plaintiffs: Timothy R. Richardson, LEAD ATTORNEY, Richardson Law Group, Madisonville, LA.

For Amazon Logistics, Inc., Amazon.com, Inc., Defendants: Henry J. Rodriguez, LEAD ATTORNEY, Donald G. Cassels, III, Victoria J. Cvitanovic, Wilson Elser, New Orleans, LA; Mark T Assad, Wilson Elser Moskowitz Edelman & Dicker, LLP, Orlando, FL.

For Cynthia Kirksey, Defendant: Matthew D. Miller, LEAD ATTORNEY, Copeland, Cook, Taylor & Bush, PA (Hattiesburg), Hattiesburg, MS.

For B3 Logistics, LLC, Brian Davis, Defendants: Wade Antoine Langlois, III, LEAD ATTORNEY, John Joseph Danna, Jr., Kaylyn Elizabeth Blosser, Gaudry, Ranson, Higgins & Gremillion, LLC (Gretna), Gretna, LA.

For Lancer Insurance Company, Defendant: Andrea Leigh Albert, LEAD ATTORNEY, Stephen J. Eckholdt, Galloway, Johnson, Tompkins, Burr & Smith (Mandeville), Mandeville, LA.

For Michael Davis, Murzuka Afrida, Justin Walker, [*2] Renee Mota, Germaine White, Defendants: Henry J. Rodriguez, LEAD ATTORNEY, Donald G. Cassels, III, Victoria J. Cvitanovic, Wilson Elser, New Orleans, LA; Mark T Assad, Wilson Elser Moskowitz Edelman & Dicker, LLP, Orlando, FL.

Judges: BARRY W. ASHE, UNITED STATES DISTRICT JUDGE.

Opinion by: BARRY W. ASHE

Opinion

ORDER & REASONS

Before the Court is a motion filed by plaintiffs Tameica Baker, Alrick Baker, Jr., Kalila Baker,¹ and Shushana Edwards² (collectively, “Plaintiffs”) to remand this matter to the 24th Judicial District Court, Parish of Jefferson, State of Louisiana.³ Defendants Amazon Logistics, Inc. (“Amazon”) and Lancer Insurance Company (“Lancer”) respond in opposition,⁴ and Plaintiffs reply in further support of their motion.⁵ Defendants file a surreply in further opposition to the motion.⁶ Having considered the parties’ memoranda, the record, and the applicable law, this Court issues this Order & Reasons granting Plaintiffs’ motion to remand.

I. BACKGROUND

This matter involves a claim against multiple defendants arising out of a car accident eventuating in a fatality. On June 5, 2023, on Interstate 10 in Biloxi, Mississippi, Alrick Baker’s vehicle was struck when an Amazon tractor trailer driven by Cynthia Kirksey [*3] attempted to pass him.⁷ As a result of the collision, Baker’s vehicle was forced off the roadway and burst into flames, which caused significant burns to his body and ultimately led to his death.⁸

Plaintiffs brought this action in state court seeking damages for Baker’s death.⁹ Plaintiffs assert that the accident was caused by Amazon’s negligence in failing to adhere to its obligations and duties under the law and its contract with B3 Logistics, LLC (“B3”).¹⁰ In addition to naming the Amazon entities,¹¹ Plaintiffs sued B3, Brian Davis, Kirksey, Ontime Carriers, LLC, Lancer, Prime Insurance Company (“Prime Insurance”), Great American Assurance Company (“Great American”), Mohave Transportation Insurance Company, and five individual Amazon employees (the “Amazon Supervisors”): Michael Davis, Murzuka Afrida, Justin Walker, Renee Mota, and Germaine White.¹²

On June 15, 2023, Amazon removed the action to this Court on the basis of a diversity of citizenship and an amount in controversy exceeding $75,000, exclusive of interest and costs.¹³ In its notice of removal, Amazon contends that, although the Amazon Supervisors are said to be citizens of Louisiana, their citizenship should not be [*4] considered in determining diversity jurisdiction because, as employees of Amazon, none can be personally liable to Plaintiffs.¹⁴ Thus, according to Amazon, Baker improperly joined the Amazon Supervisors to defeat federal diversity subject-matter jurisdiction.¹⁵ Lancer filed a consent to removal on June 26, 2023.¹⁶ Together, B3 and Brian Davis filed a consent to removal on June 27, 2023.¹⁷ The next day Plaintiffs filed the instant motion to remand.¹⁸

II. PENDING MOTION

In their motion to remand, Plaintiffs raise two issues with respect to Amazon’s removal. First, Plaintiffs argue that the nondiverse Amazon Supervisors are properly joined, and, as a result, this Court lacks subject-matter jurisdiction.¹⁹ Second, Plaintiffs assert that removal is improper because Amazon did not obtain the consent of all served defendants prior to removal as required by 28 U.S.C. § 1446(b)(2)(A).²⁰ To their motion, Plaintiffs attach proofs of service on Brian Davis (reflecting service on June 5, 2023), Renee Mota (June 12, 2023), Amazon (June 13, 2023), Lancer (June 13, 2023), Great American (June 13, 2023), Prime Insurance (June 13, 2023), and Michael Davis (June 20, 2023).²¹ With its § 1447 compliance memorandum filed on July 3, 2023, Amazon [*5] submitted these same service returns as well as the completed return for defendant Germaine White (reflecting service on June 1, 2023).²²

In opposition to the motion to remand, Amazon argues that Plaintiffs’ complaint does not state any valid claims against the Amazon Supervisors under Louisiana law, meaning, says Amazon, that these nondiverse defendants are improperly joined and should be disregarded, and, as a consequence, this Court has diversity jurisdiction.²³ However, Amazon does not address the issue of consent.²⁴

Plaintiffs then sought leave to file a reply brief, in which they again urge that the lack of complete diversity and the failure to obtain proper consent warranted remand.²⁵ Amazon opposed Plaintiffs’ motion for leave in part, claiming that Plaintiffs failed to raise the issue of consent in their original motion to remand.²⁶ Finding that the issue of consent was indeed raised by Plaintiffs in their motion to remand, this Court permitted the filing of the reply brief.²⁷ In a surreply (which the Court also allowed), Amazon argues that, at the time of removal, the state-court record reflected completed service for only Germaine White, one of the Amazon Supervisors who Amazon contends [*6] is improperly joined and thus should be disregarded.²⁸ Alternatively, Amazon asks in the surreply that, if additional defendants were served prior to removal, this Court apply an exception to the rule of unanimity due to exceptional circumstances.²⁹ Lastly, Amazon suggests that the Court allow the properly joined and served defendants to first make their appearance and then take a position as to whether they consent to the removal of this matter.³⁰

On July 17, 2023, five days after filing its surreply, Amazon filed a document titled “proof of consent to removal” purporting to be proof that insurers Prime Insurance and Great American consented to the removal.³¹ To this document, Amazon attached emails from Prime Insurance’s counsel dated July 13, 2023, and Great American’s counsel dated July 14, 2023, communicating that the insurance companies consent to the removal.³² Plaintiffs argue that Amazon’s proof of consent is untimely as both it and the alleged consents (i.e., the emails) were filed outside the 30-day time period allowed for consents to removal under 28 U.S.C. 1446(b).³³

III. LAW AND ANALYSIS

A. Removal Standard

A defendant may remove from state court to the proper United States district court “any [*7] civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “A federal district court has subject matter jurisdiction over a state claim when the amount in controversy is met and there is complete diversity of citizenship between the parties.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing 28 U.S.C. § 1332(a)). Because federal courts have only limited jurisdiction, the removal statute is strictly construed, and any doubts or ambiguities are resolved against removal and in favor of remand. Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014); Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The party seeking removal has the burden of establishing “that federal jurisdiction exists and that removal was proper.” Manguno, 276 F.3d at 723.

B. Rule of Unanimity

Procedural requirements for removal are set forth in 28 U.S.C. § 1446(b). To remove a case, a defendant must file a notice of removal within 30 days of service on the defendant. Id. § 1446(a)-(b)(1). All defendants who have been “properly joined and served” must join in or consent to the removal of the action. Id. § 1446(b)(2)(A). According to the Fifth Circuit, this “rule of unanimity” requires that each served defendant join in the notice of removal or that there be a “timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in [*8] this respect and to have authority to do so, that it has actually consented to such action.” Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 (5th Cir. 1988). District courts in the Fifth Circuit “have consistently remanded cases where a notice of removal included only an allegation of consent of a defendant not joining in the notice of removal.” McFarland v. Protective Ins. Co., 2019 WL 351150, at *2 (E.D. La. Jan. 29, 2019) (citing Spoon v. Fannin Cnty. Cmty. Supervision & Corr. Dep’t, 794 F. Supp. 2d 703, 707 (E.D. Tex. 2011) (collecting cases)).

The Fifth Circuit has recognized three exceptions to the rule of unanimity: (1) non-removing defendants who are improperly or fraudulently joined; (2) non-removing defendants who are merely nominal or formal parties; and (3) non-removing defendants who have not been served by the time of removal. Wagner, 2019 WL 626430, at *3 (citations omitted); World Prayer Tabernacle v. Certain Underwriters at Lloyd’s, 2022 WL 4949125, at *1 (E.D. La. Oct. 4, 2022). And it has also “recognized that ‘sometimes exceptional or unique circumstances might permit removal after the expiration of the thirty-day period prescribed by § 1446(b).'” Cavalier v. Progressive Paloverde Ins. Co., 2021 WL 4772108, at *2 (E.D. La. Oct. 12, 2021) (quoting Ortiz v. Young, 431 F. App’x 306, 307 (5th Cir. 2011)). This additional exception has only been granted by the Fifth Circuit in the “unique” case of Gillis v. Louisiana, 249 F.3d 755 (5th Cir. 2002), in which “the non-removing defendant did not file its written consent in thirty days because consent could be authorized only at a board meeting, and the plaintiff, who was also the chairman of the board, had interposed scheduling conflicts that prevented timely consent.” Cavalier, 2021 WL 4772108, at *2. Such “exceptional [*9] circumstances” will generally be found, then, only when the non-removing defendant’s “lack of timely consent arises from plaintiff’s conduct, such as plaintiff’s ‘bad faith efforts to prevent removal.'” Id. (quoting Ortiz, 431 F. App’x at 307-08). Thus, the Fifth Circuit has instructed district courts to consider the reasonableness of the removing defendant’s actions and whether the circumstances (e.g., plaintiff’s conduct) were sufficiently “exceptional” to justify a departure from the rule of unanimity. Getty, 841 F.2d at 1263.

C. Amazon’s Removal Was Procedurally Defective

Although Plaintiffs present two distinct issues in the motion to remand, the lack of unanimous consent to removal provides sufficient grounds to grant the motion.³⁴ Plaintiffs argue that removal is defective due to Amazon’s failure to file into the court record notices of consent as to all properly joined and served defendants within the 30-day period for removal.³⁵ After careful consideration, the Court agrees that Amazon’s removal was procedurally defective.

Each defendant must consent to removal and cannot rely on the removing party’s allegation of consent by the non-removing defendants. See Getty, 841 F.2d at 1262 & n.11; McFarland, 2019 WL 351150, at *2. Among the defendants who are assumed to be properly joined and who were [*10] properly served prior to removal, only Lancer and Brian Davis timely consented to removal.³⁶ This leaves the insurers Prime Insurance and Great American as the only defendants properly joined and served before Amazon’s removal whose consent to removal was not timely made a part of the court record. But Amazon alleges that Prime Insurance and Great American did consent to removal by means of emails dated July 13 and 14, 2023, respectively, and Amazon attaches these emails to the “proof of consent to removal” it filed into the record on July 17, 2023.³⁷ This “proof of consent” cannot carry the weight Amazon places on it, though, because no “timely filed written indication” of consent by Great American or Prime Insurance was filed into the record within the 30-day period for removal, which ended on July 13, 2023.³⁸ See Getty, 841 F.2d at 1262 n.11; Waguespack v. Homesite Ins. Co., 2022 WL 612071, at *2 (E.D. La. Feb. 28, 2022) (“Here, [defendant]’s notice of consent to removal was filed 31 days after the defendants were served. Thus, it was untimely.”). Nor are the emails, in and of themselves, sufficient to establish that Great American and Prime Insurance’s purported “consent” to the removal was timely. After all, it is well-established “that private emails between counsel are insufficient to [*11] constitute written consent as they fail to put either the Court or the plaintiff on notice.” Taco Tico of New Orleans, Inc. v. Argonaut Great Cent. Cent. Ins. Co., 2009 WL 2160436, at *2 (E.D. La. Jul. 16, 2009) (citing Johnson v. Health Bilal, 2009 WL 981696, at *2 (E.D. La. Apr. 13, 2009), and Marshall v. Air Liquide-Big Three, Inc., 2006 WL 286011, at *3 (E.D. La. Feb. 7, 2006)).

In short, “[b]ecause no written consent was timely filed by [all properly joined and served non-removing defendants], and because such consent cannot be filed outside of the thirty day time period, Plaintiffs have raised a procedural defect that requires remand.” Melton v. Toney, 2017 WL 11543680, at *6 (M.D. La. Dec. 5, 2017), adopted, 2017 WL 11543720 (M.D. La. Dec. 21, 2017); see also Grand Tex. Homes, Inc. v. Am. Safety Indem. Co., 2012 WL 5355958, at *3 (N.D. Tex. Oct. 30, 2012) (“Failure to join in removal is a procedural defect that cannot be cured by untimely notice of consent” and cannot be remedied after the 30-day period for removal has ended). Therefore, absent an exception to the rule of unanimity, Amazon’s removal is defective, and the case must be remanded.

Regarding the first two exceptions (non-removing defendants who are improperly or fraudulently joined or are merely nominal or formal parties), the five nondiverse Amazon Supervisors are here assumed to have been improperly joined and thus are ignored.³⁹ But no party contends that the insurer-defendants Great American and Prime Insurance are improperly joined or nominal parties. Therefore, these exceptions do not apply to these two defendants. Proceeding to the third exception (non-removing defendants who have [*12] not been served by the time of removal), Prime Insurance and Great American were served on June 13, 2023, and the case was removed on June 15, 2023.⁴⁰ Thus, these defendants were served by the time of removal, so the third exception does not apply to them.

Although the three exceptions to the rule of unanimity do not apply in this case, Amazon points to the decision in Wagner v. Government Employees Insurance Co. to argue that “exceptional circumstances” warrant departure from the rule and a denial of the motion to remand. In Wagner, the plaintiffs delayed entering into the state-court record an affidavit of service of process for the non-removing defendant until after removal. Wagner, 2019 WL 626430, at *5. Prior to removal, the removing defendant “attempted several times to ascertain whether [the non-removing defendant] had been served,” including, most notably, in a conversation with the plaintiffs the day before filing its notice of removal during which plaintiffs failed to advise that the non-removing defendant had been served more than a month before the conversation. Id. The Wagner court found that because the removing defendant “acted on the information before it at the time of removal and sought to obtain [*13] consent to removal from all of the defendants,” exceptional circumstances permitted removal even though the consent of a properly joined and served non-removing defendant had not been filed into the court record within the 30-day period. Id.

In contrast, the court in Cavalier v. Progressive Paloverde Insurance Co. distinguished Wagner and found that the removing defendant failed to “act with the requisite diligence to warrant an exception to the consent requirement.” Cavalier, 2021 WL 4772108, at *2-4. The removing defendant there represented that its only effort to obtain consent was calling the state-court clerk before removal to determine whether the non-removing defendant had been served. Id. at *3 (comparing Wagner, where the removing defendant diligently attempted to contact its co-defendants several times to obtain consent for removal and had spoken to plaintiffs who had kept silent about service on defendants). The Cavalier court found that the removing defendant’s “lack of diligence in reaching out to [the non-removing defendant] is even less excusable given that plaintiff’s state court petition included the name and address of [the non-removing defendant’s] agent for service.” Id.; see also World Prayer Tabernacle, 2022 WL 4949125 at *4 (“[M]inimal steps, such [*14] as a phone call to the plaintiff, would likely have sufficed to determine whether [the non-removing defendants] had been served. Because [the removing defendant] cannot point to diligent or good faith efforts to obtain the consent of [the non-removing defendants], this Court finds no exceptional circumstances which would justify removal of this case.”).

Here, Amazon has failed to demonstrate sufficient effort to ascertain the status of service on, or to obtain consent from, its named co-defendants, including particularly Great American and Prime Insurance, within the 30-day removal period. Unlike the removing defendant in Wagner, Amazon points to no attempts it made to determine whether the other named defendants had been served before removal, other than ordering and attaching the state-court record to its notice of removal.⁴¹ In Cavalier, the removing defendant called the state-court clerk to inquire whether the non-removing defendant had been served, and the court still found that the defendant had not acted with the requisite diligence to justify an exception to the consent requirement. Generally, courts have not found exceptional circumstances to warrant an exception to the unanimity [*15] rule when the removing defendant simply relied on the state-court record at the time of removal; instead, they require that the removing defendant make a diligent effort to contact the non-removing defendants to ask about service. Id. at *2 (citing Dupree v. Torin Jacks, Inc., 2009 WL 366332, at *5 (W.D. La. Feb. 12, 2009) (“[T]he absence of record evidence of service, standing alone, does not automatically equal exceptional circumstances.”); Grant v. FCA US, LLC, 2019 WL 2635930, at *2 (E.D. La. June 27, 2019) (“Considering Defendant[‘s] failure to attempt to contact the other Defendants … the Court finds that the facts do not present an exceptional circumstance, and remand is appropriate.”)).

Even if Amazon was unaware that other properly joined defendants had been served prior to removal (as does appear to have been true from the state-court record it attached to its notice of removal),⁴² Plaintiffs raised the issue of unanimous consent in their motion to remand, which was filed on June 28, 2023, just 13 days after Amazon’s notice of removal – and, significantly, still 15 days before the 30-day removal period expired.⁴³ With its motion to remand, Plaintiffs provided the proofs of service on Great American and Prime Insurance, among others.⁴⁴ Further, with its own compliance memorandum filed on July 3, 2023, 18 days after removal, but [*16] 10 days before expiration of the 30-day period, Amazon also included the service returns for Great American and Prime Insurance reflecting that they had been served on June 13, 2023, two days before the June 15 removal.⁴⁵ Therefore, Amazon had actual notice of service on these two defendants well within the 30-day period. Yet, Amazon waited until July 13 and 14 to contact Great American and Prime Insurance about their consent and did not file a written indication of such consent until after the 30-day period lapsed. Consequently, the Court finds that Amazon did not make diligent efforts either to obtain consent of all properly joined and served non-removing defendants, or to file into the record a timely written indication of such consent. Moreover, this case does not involve any allegation or indication of bad faith or forum manipulation by Plaintiffs. See e.g., Forman v. Equifax Credit Info. Svcs., Inc., 1997 WL 162008, at *1 (E.D. La. Apr. 4, 1997) (“There is no evidence, nor any allegation, that plaintiff withheld service to defeat removal or otherwise acted in bad faith in an attempt to manipulate the forum.”).

Lastly, Amazon suggests that the proper manner of proceeding is to allow the properly joined and served defendants to first make their appearance and then take [*17] a position as to whether they consent to the removal of this matter.⁴⁶ However, “[d]istrict courts have no power to overlook procedural errors related to the notice of removal; instead, a district court must remand a case which was removed pursuant to a procedurally defective notice.” Grigsby v. Kansas City So. Ry. Co., 2012 WL 3526903, at *3 (W.D. La. Aug. 13, 2012); see also Cornella v. State Farm Fire & Cas. Co., 2010 WL 2605725, at *3 (E.D. La. June 22, 2010) (“[T]he Court cannot cut jurisdictional corners as doing so would be contrary to Fifth Circuit jurisprudence.”). Thus, this argument fails.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Plaintiffs’ motion to remand (R. Doc. 12) is GRANTED, and this case is REMANDED to the 24th Judicial District Court, Parish of Jefferson, State of Louisiana.

New Orleans, Louisiana, this 26th day of July, 2023.

/s/ Barry W. Ashe

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE

End of Document

¹Tameica Baker, Alrick Baker, Jr., and Kalila Baker appear individually and on behalf of the decedent, Alrick Baker, who was Tameica’s husband and Alrick Jr. and Kalila’s father.

²Shushana Edwards brings claims on behalf of her minor children, who are also Alrick Sr.’s children.

³R. Doc. 12.

⁴R. Docs. 18; 19. Lancer adopts Amazon’s legal argument; therefore, the Court refers only to Amazon’s opposition in this Order & Reasons.

⁵R. Doc. 26.

⁶R. Doc. 31.

⁷R. Doc. 12-3 at 7.

⁸Id. at 8.

⁹Id. at 1-18.

¹⁰Id. at 9.

¹¹Plaintiffs sued Amazon.com, Inc., as well as Amazon. Id. at 2.

¹²Id. at 2-4.

¹³R. Doc. 4 at 1-3.

¹⁴Id. at 5.

¹⁵Id.

¹⁶R. Doc. 9.

¹⁷R. Doc. 10.

¹⁸R. Doc. 12 at 1-2.

¹⁹R. Doc. 12-1 at 6-13 (quoting Williamson v. Aramark Schools Facilities, LLC, 2017 WL 5761626, at *4-6 (M.D. La. Oct. 30, 2017)).

²⁰Id. at 13.

²¹R. Doc. 12-4 at 1-9.

²²R. Doc. 15-1 at 42, 98-103.

²³R. Doc. 18 at 5.

²⁴R. Doc. 18.

²⁵R. Docs. 20 at 1; 20-3 at 2-6 (proposed reply brief); 26 at 2-6 (reply brief).

²⁶R. Doc. 21 at 2.

²⁷R. Doc. 25 at 1 (citing R. Doc. 12 at 13).

²⁸R. Doc. 31 at 2.

²⁹Id. at 2-3 (citing Wagner v. Gov. Emps. Ins. Co., 2019 WL 626430 (E.D. La. Feb. 14, 2019)).

³⁰Id. at 3.

³¹R. Doc. 32.

³²R. Doc. 32-1 at 1-4. Counsel for Prime Insurance writes, “You have Prime’s consent.” Counsel for Great American responds, “Yes, thank you!,” to an email from Amazon’s counsel asking, “Just so I’m clear, Great American consents to removal?”

³³R. Doc. 33 at 2.

³⁴R. Doc. 2-1 at 13. Consequently, the Court does not reach Plaintiffs’ contention that the nondiverse Amazon Supervisors were properly joined and that, as a result, the case should be remanded for lack of diversity. Instead, the Court will assume for purposes of this motion that the Amazon Supervisors were not properly joined and thus should be ignored.

³⁵R. Doc. 26 at 2.

³⁶R. Docs. 9; 10. Defendants B3 and Kirksey also timely consented to removal, R. Docs. 10; 24, but the record does not contain proof that they were served before Amazon’s removal of the case. The record reflects that defendants Mota and White were served before Amazon’s removal, R. Docs. 12-4 at 2; 15-1 at 43, 102, but, again, as Amazon Supervisors, they are assumed for purposes of this analysis to be improperly joined and so are ignored.

³⁷R. Doc. 32.

³⁸Amazon, Great American, and Prime Insurance were all served on June 13, 2023. R. Docs. 12-4 at 1, 4-5; 15-1 at 98-100.

³⁹R. Doc. 4 at 5.

⁴⁰R. Docs. 12-4 at 4-5; 4 at 1.

⁴¹R. Docs. 31 at 1; 4 at 1-2.

⁴²R. Doc. 1-2.

⁴³R. Doc. 12-1 at 13 (attaching R. Doc. 12-4).

⁴⁴R. Doc. 12-4 at 1-9.

⁴⁵R. Doc. 15-1 at 98, 100.

⁴⁶R. Doc. 31 at 3.