Flores v. Flores

Background

Desiree Flores filed a negligence action in the Supreme Court of the State of New York, County of Bronx, against Franklin Flores, ECI Transport, Inc. d/b/a Econo Courier a/k/a ECI, and Kellean Oliver. She alleged that she was a passenger in a vehicle owned and operated by Franklin Flores when it collided with a vehicle owned by ECI and operated by Oliver. She claimed that the defendants’ negligence caused serious and permanent injuries, pain and suffering, lost earnings, medical expenses, and loss of enjoyment of life.

ECI and Oliver filed a notice removing the case to federal court. Franklin Flores did not join or consent to the removal. Flores moved to remand, meaning she asked the federal court to send the case back to state court. She argued that removal was untimely and that the federal court lacked subject-matter jurisdiction. The opinion’s ruling rests on the failure of all properly served defendants to consent to removal.

Removal and Consent

Federal law generally requires all defendants who have been properly joined and served to join in or consent to removal. The removing parties bear the burden of showing compliance with this requirement, and courts strictly construe the removal statutes and resolve doubts against removal.

The court found that Franklin Flores was properly served. Although the parties later stipulated that Franklin Flores would waive any defense based on improper service, he still did not join or consent to the notice of removal. The court determined that the exception for an unserved defendant did not apply. It also found that the claim was not a separate and independent claim, so that exception did not apply either.

The remaining possible exception concerned a nominal party. A nominal party is one against whom, under the applicable state law, no cause of action could be stated. Under New York negligence law, a plaintiff must show that the defendant owed a duty of care, failed to meet that duty, and caused the plaintiff’s injury. ECI and Oliver did not argue that these elements could not be established against Franklin Flores. Instead, they asserted, based on information and belief and without supporting evidence, that Franklin Flores lacked spousal insurance that would cover Flores’s injuries.

The court held that a possible lack of insurance coverage did not make Franklin Flores a nominal party. It also stated that, even if there were doubts about why Flores sued her husband, those doubts had to be resolved against removal. Franklin Flores therefore was required to join in or consent to removal, and he had not done so.

Fees and Disposition

Flores also sought costs and expenses related to her remand motion. The court explained that attorney fees may be awarded after remand when the removing party lacked an objectively reasonable basis for removal. The court found that ECI and Oliver had a colorable argument that removal was proper, based on their assertion that the parties were diverse and that the amount in controversy exceeded the jurisdictional requirement.

Judge Jessica G. L. Clarke granted Flores’s motion to remand and remanded the action to the Supreme Court of the State of New York, County of Bronx. The court declined to award Flores fees and costs. The opinion does not decide the underlying negligence claims.