Alvarez Rodriguez v. XTRA LLC

Background

The case was removed from New York State Supreme Court, Bronx County, to the U.S. District Court for the Southern District of New York. The complaint alleges that Plaintiffs Carina Maria Alvarez Rodriguez and Ana Peguero de Noboa were seriously injured when an automobile they were traveling in was hit by a vehicle driven by Defendant Edwin Monegro Ortiz. The complaint alleges that XTRA, LLC owned the vehicle.

The notice of removal invoked diversity jurisdiction, which allows a federal court to hear certain disputes involving parties from different states when the amount in controversy exceeds $75,000. The notice alleged that Plaintiffs were New York citizens, Ortiz was a Pennsylvania citizen, and XTRA’s sole member was a corporation incorporated in Delaware with its principal place of business in Missouri. The opinion states that the amount in controversy exceeded $75,000.

Removal Defect

Ortiz filed the notice of removal, and it stated that XTRA consented to removal. But the notice did not contain a signature line for XTRA or a written consent signed by XTRA or its agent. XTRA had been served before Ortiz, and the notice did not include a separate certificate confirming XTRA’s concurrence.

At an initial conference, the court raised the issue of whether the notice failed to meet the rule of unanimity. That rule generally requires all properly served defendants to join in or formally consent to removal. No party objected to the removal. Plaintiffs’ counsel expressed a desire to keep the case in federal court. Ortiz’s counsel acknowledged that the notice did not meet the written-consent requirement in the strictest technical terms.

Ortiz also urged the court to retain jurisdiction. According to Ortiz’s submission, the parties acknowledged that XTRA had been improperly named because it merely owned the vehicle and Ortiz did not work for XTRA. Ortiz stated that he worked for J.B. Hunt Transport, Inc., which would be added to the case. He argued that sending the case back to state court would serve no purpose because Plaintiffs could amend the complaint or agree to add J.B. Hunt, after which Ortiz would remove the case again.

Court’s Analysis

The court held that failing to include XTRA’s written consent was a procedural defect. It did not defeat subject-matter jurisdiction, meaning it did not eliminate the court’s legal authority to hear the case. Under 28 U.S.C. § 1447(c), a party seeking remand based on a removal defect other than lack of subject-matter jurisdiction must move for remand within 30 days after the notice of removal. The court stated that an objection to this type of defect is waived if it is not made within that period.

The court further held that it could not remand the case on its own initiative based on the procedural defect. Because no party objected to removal, the defect was waived and the case could proceed in federal court.

Disposition

The court retained jurisdiction and ruled that the case would not be remanded to state court, notwithstanding the defect in the notice of removal. The opinion did not decide whether Plaintiffs should prevail on their injury claims. It also did not itself state an order dismissing XTRA or adding J.B. Hunt Transport, Inc.