1

There have been two previous lawsuits in connection with

the events underlying the instant action, namely Sprinkle, et al.

v. Johnson, et al., CV 07-00713-WS-B and Stewart, et al. v.

Johnson, et al., CV 08-00200-WS-B. Both cases were remanded back

to the circuit court due to lack of diversity.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CATEGORY 5 MANAGEMENT GROUP, LLC,*

 *

Plaintiff, *

 *

vs. * Civil Action: 09-00633-CG-B

 *

NATIONAL CASUALTY INSURANCE, *

COMPANY, et al., *

 *

Defendants. *

REPORT AND RECOMMENDATION

This matter, which was referred to the undersigned Magistrate

Judge pursuant to 28 U.S.C. § 636(b)(1)(B), is before the Court on

Plaintiff’s Motion to Remand. (Doc. 43). Upon review of

Plaintiff’s motion, and supporting briefs and materials, and

Defendants’ briefs in opposition, the undersigned recommends that

Plaintiff’s Motion to Remand be DENIED.

I. Background

The Court is well acquainted with the facts underlying this

case.1 In Stewart, et al. v. Johnson, et al., CV 08-00200-WS-B, 

District Judge William Steele, in an Order dated July 11, 2008,

observed the following:

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 1 of 18
2

Shortly before the instant removal, David and

Patricia Stewart, as the guardian and conservator of

their daughter Celena and their granddaughter [F.S.],

were substituted as party plaintiff.

2

On July 11, 2007, according to the complaint, Joe

Edward Johnson ran a red light at the intersection for

two Baldwin County highways and struck a vehicle,

driven by Tracey Lee Stewart, on the front passenger

door. Just inside that door sat Celena Sprinkle, who

suffered a severe head injury as a result. Celena’s

daughter [F.S.], who was in the back seat, was rendered

a quadriplegic. Celena’s sister Tracey was also hurt.

(Doc. 5, ¶¶ 11-13).

In August 2007, the three injured parties brought

suit in Mobile County Circuit Court against Johnson and

two artificial entities. The entity defendants (Johnson

had not been served with process) removed the action in

October 2007 on the basis of diversity of citizenship.

Sprinkle v. Johnson, Civil Action No. 07-0713-WS-B. The

plaintiffs moved to remand on the grounds that Johnson,

like Celena and Faith, was a citizen of Alabama. (Id.,

Doc. 5). This Court ruled that the removing defendants

had failed to carry their burden of showing that

Johnson was not a citizen of Alabama, granted the

plaintiffs’ motion, and remanded the case to state

court. (Id., Doc. 7).

In January 2008, the plaintiffs2 filed an amended

complaint which, inter alia, added four defendants,

including Newleaf Disaster Management (“Newleaf”) and

Category 5 Management Group, LLC (“Category 5”). (Doc.

22 Part 7). According to the lengthy state court docket

sheet, each of these defendants was served in January,

and some of them responded to the complaint, but none

of them removed the action. Instead, Johnson removed on

April 18 after being served on March 19, on the same

basis as the first, failed removal — that he is not a

citizen of Alabama and that complete diversity

therefore exists.

Given the allegation of quadriplegia, there is no

question but that the amount in controversy, exclusive

of interest and costs, exceeds $75,000, and the parties

do not argue otherwise. They also agree that David,

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 2 of 18
3

The Court takes judicial notice of its records. ITT

Rayonier, Inc. v. United States, 651 F.2d 343, 345 n.2 (5th Cir.

July 20, 1981). 

3

Patricia, Celena and Faith are citizens of Alabama and

that Newleaf and Category 5 are citizens of Florida.

(Doc. 1 at 3; Doc. 22 Part 7, ¶¶ 32-33). The issues are

whether Tracey is also a citizen of Florida and whether

Johnson is also a citizen of Alabama. If either of

these propositions is correct, complete diversity is

lacking and remand is required. Because the Court finds

the first proposition correct, it pretermits

consideration of the second.

(CA No. 08-00200-WS-B, Doc. 58) (Footnote in original).3

As noted above, a personal injury lawsuit, namely Sprinkle, et

al. v. Johnson, et al., CV 2007-900950, was filed in the Circuit

Court of Mobile County, Alabama, on August 7, 2007 by Celena

Sprinkle, individually and as mother of F.S., and by Tracey Lee

Stewart. (Docs. 1, Ex. A; 45, Ex. A). Along with Joe Edward

Johnson, Colonel McCrary Trucking, Inc. (hereinafter “CMT”),

Category 5 Management Group, LLC (hereinafter “CAT 5”) and R.D.

Construction were named as defendants. (See id.; Doc. 45, Ex. B).

On September 26, 2008, CAT 5 moved for leave to file a cross-claim

against CMT in the state court and attached thereto the proposed

cross-claim seeking indemnification based upon provisions of a

contract between CAT 5 and CMT. (Doc. 45, Ex. C). On October 3,

2008, a Consent Judgment and Order Approving Pro Tanto, Pro Ami

Settlement was entered on behalf of the Stewart/ Sprinkle

plaintiffs and defendants CMT, R.D. Construction, and Joe Edward

Johnson. (Doc. 45, Ex. D). The Stewart/ Sprinkle plaintiffs’ claims

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 3 of 18
4

against CAT 5 remained pending.

CAT 5’s motion for leave to file cross-claim was granted by

the circuit court on October 9, 2008, (Doc. 45, Ex. E). Subsequent

thereto, CAT 5, on November 6, 2008, filed its cross-claim against

CMT (Doc. 1, Ex. D). CMT filed an answer and motion to dismiss the

cross-claim on November 6, 2008, and November 7, 2008,

respectively. (Doc. 43, Ex. 2, Case Action Summary). The motion to

dismiss was denied on March 13, 2009. (Doc. 43, Ex. 2, Case Action

Summary).

On January 6, 2009, CAT 5 filed an amended cross-claim. In

the amended cross-claim, CAT reasserted its claims against CMT and

added third party claims against National Casualty Insurance

Company (hereinafter “National Casualty”) and ACE American

Insurance (hereinafter “ACE”). CAT 5 alleged breach of contract,

third party beneficiary status, bad faith, and negligence. (Doc. 1,

Ex. C). National Casualty, CMT, and ACE each filed separate

motions to sever the cross-claim from the underlying personal

injury action on February 27, 2009, March 9, 2009, July 13, 2009,

respectively. (Doc. 1, Exs. E - G). The motions were granted by

the circuit court on September 18, 2009 (Doc. 1, Ex. H). Shortly

thereafter, Defendants National Casualty, ACE, and CMT filed, on

September 28, 2009, a joint Notice of Removal on the basis of

diversity of citizenship pursuant to 28 U.S.C. §§ 1332, 1441 and

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 4 of 18
4

CAT 5 incorrectly asserts the CMT removed this action on

September 29, 2009, a day after ACE and National Casualty removed

this case. (Doc. 43). However, a review of the case docket and

the Notice of Removal (Doc. 1) reveals that all three Defendants

filed a joint Notice of Removal, which was docketed in this Court

on September 28, 2009. 

5

1446.4 (Doc. 1). Defendants assert that there is diversity of

citizenship as Plaintiff is incorporated in Florida, and has its

principal place of business there, National Casualty is

incorporated in Arizona and has its principal place of business

there, ACE is incorporated in Pennsylvania and has its principal

place of business there, and CMT is incorporated in Georgia and has

its principal place of business there. (Id.) Defendants further

assert that the amount in controversy exceeds the statutory

threshold as the primary policy which Plaintiff seeks to recover

under has policy limits of $1,000,000. 

In its motion seeking remand, Plaintiff CAT 5 does not dispute

that there is diversity of citizenship nor does Plaintiff claim

that the amount in controversy has not been met. Instead, Plaintiff

asserts that this Court has no jurisdiction over this case because

the Notice of Removal is untimely as to CMT because CMT sought

removal beyond the thirty day and one year limitation periods

contained in 28 U.S.C. § 1446(b). Plaintiff also argues that

because CMT’s removal was untimely, CMT could not give its consent

to removal by co-defendants National Casualty and ACE; therefore,

the unanimity requirement for removal is lacking. In addition,

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 5 of 18
6

Plaintiff argues that by actively defending the claims asserted by

CAT 5, CMT waived its right to remove. Additionally, Plaintiff

argues that should the Court agree that CMT’s removal was untimely

and remand, the Court should refrain from exercising jurisdiction

over claims against ACE and National Casualty under the abstention

doctrine as set forth in Colorado River Water Conservation District

v. United States, 424 U.S. 800 (1976). Defendants, in turn, filed

a response in opposition to Plaintiff’s motion. Defendants contend

that removal is appropriate as CMT’s Notice of Removal was timely

filed, complete diversity exists among the parties, and the amount

in controversy requirement has been met. (Docs. 45, 46). 

II. Discussion

United States “district courts ... have original jurisdiction

of all civil actions where the matter in controversy exceeds the

sum or value of $75,000, exclusive of interest and costs, and is

between ... [c]itizens of different States.” 28 U.S.C. §

1332(a)(1). “[A]ny civil action brought in a State court of which

the district courts of the United States have original

jurisdiction, may be removed by the defendant or defendants, to the

district court of the United States for the district and division

embracing the place where such action is pending.” 28 U.S.C. §

1441(a). Because removal jurisdiction is strictly construed, all

doubt is resolved in favor of remand. Burns v. Windsor Ins. Co.,

31 F.3d 1092, 1095 (llth Cir. 1994). Remand, however, is

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 6 of 18
7

appropriate when there is a defect in the removal process. See

Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1044 (11th

Cir. 2001). Generally, the removing party bears the burden of

showing that federal jurisdiction exists. Diaz v. Sheppard, 85

F.3d. 1502, 1509 (llth Cir. 1996). 

A. Thirty Day Window

The timing of a notice of removal is controlled by 28 U.S.C.

§ 1446(b), which reads in relevant part:

The notice of removal of a civil action or proceeding

shall be filed within thirty days after the receipt by

the defendant, through service or otherwise, of a copy

of the initial pleading setting forth the claim for

relief upon which such action or proceeding is based,

or within thirty days after the service of summons upon

the defendant if such initial pleading has then been

filed in court and is not required to be served on the

defendant, whichever period is shorter.

If the case stated by the initial pleading is not

removable, a notice of removal may be filed within

thirty days after receipt by the defendant, through

service or otherwise, of a copy of an amended pleading,

motion, order or other paper from which it may first be

ascertained that the case is one which is or has become

removable, except that a case may not be removed on the

basis of jurisdiction conferred by section 1332 of this

title [28 USCS § 1332] more than 1 year after

commencement of the action.

28 U.S.C. § 1446(b). 

The Eleventh Circuit has stated that in answering the question

of when an action is removable, 28 U.S.C. § 1446(b)creates two

types of cases: “(1) those removable on the basis of the initial

pleading; and (2) those that later become removable on the basis of

‘a copy of an amended pleading, motion, order or other paper.’”

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 7 of 18
8

See Lowery v. Ala. Power Co., 483 F.3d 1184, 1212 (11th Cir. 2007)

In either type of case, “a defendant must remove within thirty days

of receiving the document that provides the basis for removal.”

Id. Thus, if the case is removable on the initial pleading, the

thirty day period “is triggered by simultaneous service of the

summons and complaint, or receipt of the complaint, ‘through

service or otherwise,’ after and apart from service of the summons,

but not by mere receipt of the complaint unattended by any formal

service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526

U.S. 344, 347-48, 119 S. Ct. 1322, 143 L. Ed. 2d 448 (1999). The

statute only allows resort to the second sentence of § 1446(b)

“[i]f the case stated by the initial pleading is not removable....”

§ 1446(b).

In the case sub judice, it is clear that when the original,

underlying personal injury action was filed in state court, it was

not removable. As noted supra, two attempts to remove the original

action to federal court failed due to lack of diversity. While CAT

5 filed a cross claim and an amended cross claim on November 6,

2008, and January 6, 2009 respectively, those pleadings did not

make the case removable. The record reflects that Tracey Stewart,

who was a named plaintiff in the original action, and CAT 5, who

was a named defendant in the original action, are both citizens of

Florida. Thus, CAT’s filing of the cross-claim and amended crossclaim in the original state court action did not have any impact on

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 8 of 18
5

While Plaintiff asserts that Defendant CMT waived its right

to remove by participating in the state court action, the law is

clear that a party cannot waive a right that it does not yet

have. See Cruz v. Lowe’s Home Centers, 2009 U.S. Dist. LEXIS

66146 (M.D. Fla. July 21, 2009)(Defendant did no waive its right

to remove the state court action when it participated in

discovery and the case management conference because the right to

remove was not yet available to the defendant); Del Rio v.

Scottsdale Ins. Co., 2005 U.S. Dist. LEXIS 29992 (M.D. Fla. Nov.

18, 2005)(“In order to waive the right to removal ... a defendant

must proceed in state court despite having notice of its right to

remove the case.”).

The determination of whether a defendant has waived his

right to remove due to his active participation in the state

9

the issue of removability. There still existed a lack of diversity

between Tracey Stewart and CAT 5. It was only once the state court

severed this action from the original underlying personal injury

action that this case became removable. With the severance, the

amended cross-claim was no longer a part of the original personal

injury action, but was instead an entirely separate and independent

action. See Key v. Robert M. Duke Ins. Agency, 340 So.2d 781, 783

(Ala. 1976) (finding under Alabama law that severed claims become

entirely independent actions to be tried, and judgment entered

thereon, independently). Because Tracey Stewart was not a party to

the amended cross-claim, there then existed complete diversity

between CAT and the Defendants. Given that the Joint Notice of

Removal was filed within thirty days of the state court’s September

18, 2009 severance order, it is clear that Defendants, including

CMT, removed this action within thirty days of receiving the

document that provided the basis for removal5. 

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 9 of 18
court proceedings is made on a case-by-case basis. Yusefzadeh v.

Nelson, Mullins, Riley & Scarborough, LLP, 365 F.3d 1244, 1246

(11th Cir. 2004). “As a general rule, ‘the right of removal is

not lost by action in the state court short of proceeding to an

adjudication on the merits.’” Fain v. Biltmore Sec., Inc., 166

F.R.D. 39, 40 (M.D. Ala. 1996) (quoting Beighley v. FDIC, 868

F.2d 776, 782 (5th Cir. 1989)). “In order to find that a

defendant waived its right to remove, a court must find that the

defendant clearly and unequivocally intended to waive the right

to remove and to submit to the state’s jurisdiction.” Haynes v.

Gasoline Marketers, Inc., 184 F.R.D. 414, 416 (M.D. Ala. 1999).

The Eleventh Circuit has held that the filing of a motion to

dismiss, in and of itself, does not waive a defendant’s right of

removal. See Yusefzadeh, 365 F.3d at 1247; Cogdell v. Wyeth, 366

F.3d 1245, 1249 (11th Cir. 2004). Other district courts from this

Circuit have found that filing an answer in state court does not

waive removal. See, e.g., Miller v. All Star, Inc., 2010 U.S.

Dist. LEXIS 31187, at *9 (N.D. Ga. Feb. 10, 2010); Franklin v.

City of Homewood, 2007 U.S. Dist. LEXIS 47586, at *6 (N.D. Ala.

June 21, 2007); Haynes, 184 F.R.D. at 417. In addition, the right

to removal was not waived by the filing of a motion to stay and

compel arbitration, an answer with affirmative defenses, a motion

for a more definite statement, interrogatories, or requests for

production of documents, see Fain, 166 F.R.D. at 41-42; Brown v.

Sasser, 128 F. Supp. 2d 1345, 1347-48 (M.D. Ala. 2000), or the by

the filing of deposition notices, see Bolden v. Healthspring of

Ala., Inc., 2007 U.S. Dist. LEXIS 77950, at *4-5 (S.D. Ala. Oct.

2, 2007). Rather, these actions were found to be “preliminary

actions in a lawsuit, not at all comparable to the sort of

dispositive motion addressing the merits of a case that arguably

might most clearly demonstrate an intent to litigate.” Brown, 128

F. Supp. 2d at 1348. Thus, the fact that CMT was in receipt of

the cross-claim and had filed an answer and motion to dismiss is

of no consequence.

10

B. One Year Limitation

In addition to requiring that an action be removed within

thirty days of receiving “the document that provides the basis for

removal,” 28 U.S.C. § 1446(b) also provides that “a case may not be

removed on the basis of jurisdiction conferred by 28 U.S. U.S.C. §

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 10 of 18
6

The Eleventh Circuit in Bonner v City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc), adopted as binding

precedent the decisions of the former Fifth Circuit rendered

prior to October 1, 1981.

11

1332 more than one year after commencement of the action.” 28

U.S.C. § 1446(b). Accordingly, the next question before the Court

is whether the Notice of Removal was filed within one year of the

commencement of the action. “[I]n the specific context of cases

removed from state court, federal courts have held that the meaning

of the term “commencement” in 28 U.S.C. § 1446(b) is determined by

state law. Eufaula Drugs, Inc. v. Tmesys, Inc., 432 F. Supp. 2d

1240, 1246 n. 8 (M.D. Ala. 2006); Greer v. Skilcraft, 704 F. Supp.

1570, 1583 (N.D. Ala. 1989).

 Under Rule 3 of the Alabama Rules of Civil Procedure, “a civil

action is commenced by filing a complaint with the court.” In this

case, the record reflects that CAT’s cross-claim was filed on

November 6, 2008. While the original, underlying personal injury

action filed in state court in 2007, CAT’s cross claim was severed

from the original action. In Phillips v. Unijax, Inc., 625 F.2d

54, 56 (5th Cir. 1980)6, the Fifth Circuit considered whether a

state court order granting a plaintiff’s motion for separate trial

created two independent lawsuits, one of which was removable

pursuant to § 1441(a) on the basis of diversity jurisdiction. Id.

The Phillips Court, applying Alabama state law, drew a distinction

between a state court order granting separate trials, which does

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 11 of 18
12

not result in two distinct lawsuits, and a state court order

resulting in “entirely independent actions to be tried, and

judgment entered thereon, independently.” Id. (citations omitted).

The Fifth Circuit observed that in the latter case, an argument for

removal “might have merit.” Id.

Following Phillips, courts confronting the issue of whether a

“severed” claim results in an independent lawsuit have focused the

inquiry on whether the state court intended to merely separate a

plaintiff’s claims for trial purposes or whether the state court

proceedings prior to removal resulted in a true separation of

claims into two distinct lawsuits. See Miller v. Fulton, 113 F.

Supp. 2d 1035, 1039 (S.D. Miss. 2000)(applying Mississippi law and

granting remand on the ground that although the state court ordered

that plaintiff’s claims be “severed,” the defendant has not

satisfied its burden of establishing that the state court intended

to separate the claims into two lawsuits as opposed to merely

separate trials); Johnson v. Snapper Div. of Fuqua Indus., Inc.,

825 F. Supp. 127, 130-31 (E.D. Tex. 1993)(denying remand and

exercising jurisdiction over “severed” claims where an agreed order

of severance explicitly provided that the severed claims would be

separately numbered and captioned lawsuits that would result in

separate final judgments which would be separately appealed).

In this action, Plaintiff has not argued, and there is nothing

in the record to suggest that the state court severed the trials in

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 12 of 18
7

Defendants argue that this action did not commence until

January 6, 2009 when the amended cross-claim was filed and served

on the newly added defendants; however, Defendants have not cited

any binding precedent in support of their assertion. Contrary to

Defendants’ argument, the undersigned finds persuasive the

court’s decision in Desmond v. HSBC Card Services, 2009 U.S.

Dist. LEXIS 76091 (M.D. Fla. Aug. 6, 2009). In Desmond, the

court rejected the “last served” defendant’s argument that the

action was not commenced against it until it was served with

process and with the amended complaint. In rejecting the

defendant’s claim, the court observed that while the Eleventh

Circuit, in Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d

1202, 1207 (11th Cir. 2008), adopted the “last served” defendant

rule, which permits each defendant, upon formal service of

process, thirty days to file a notice of removal pursuant to §

1446(b), the Bailey decision did not address the one year

limitation, which runs from the commencement of the action. The

court held that the one year limitation depends on the filing of

an “action” as opposed to the filing of an “amended complaint.”

13

this action, as opposed to severing the cross-claim from the

underlying original action. A review of Defendants’ Motions to

Sever reflect that Defendants were seeking to sever the cross-claim

from the underlying personal injury action. While the state court’s

orders granting the motions consist of one line, there is nothing

to suggest that the severance was merely for trial purposes.

Accordingly, the undersigned finds that under Alabama law, the

severance resulted in a separate and independent action. As noted

supra, the cross-claim was filed in state court on November 6,

2007. Pursuant to Rule 3 of the Alabama Rules of Civil Procedure,

the undersigned finds that the date of filing, November 6, 2008, is

the date on which this action commenced7. The record reflects that

Defendants’ Joint Notice of Removal was filed on September 28,

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 13 of 18
14

2009, which was within the one year limitation period imposed by §

1446. Accordingly, the Notice of Removal was timely filed as to

all Defendants, including CMT.

C. The unanimity requirement.

Assuming arguendo that CMT’s Notice of Removal has been

untimely filed, CAT 5’s assertion that unanimity is lacking would

nevertheless fail. CAT 5 alleges that CMT’s failure to timely file

its notice of removal prohibits it from consenting to the removal

filed by ACE and National Casualty; thus, unanimity is lacking.

When there are multiple defendants, “federal courts have

universally required unanimity of consent in removal cases.”

Russell Corp., 264 F.3d at 1050. In support of its lack of

unanimity argument, Plaintiff CAT 5 relies on Air Starter

Components, Inc. V. Molina, 442 F. Supp. 2d 374 (S.D. Tex. 2006),

which follows the “first served defendant rule”; however, the

Eleventh Circuit recently adopted the “last served defendant rule.”

Under the “last served defendant rule,” a defendant who failed to

file a notice of removal within thirty days of service is permitted

to join in a notice of removal filed by a later-served defendant so

long as the later served defendant’s notice of removal is timely

filed. Specifically, the Eleventh Circuit held:

The unanimity rule requires that all defendants consent

to and join a notice of removal in order for it to be

effective. The last-served rule is not inconsistent

with the rule of unanimity. Earlier-served defendants

may choose to join in a later-served defendant's motion

or not, therefore preserving the rule that a notice of

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 14 of 18
15

removal must have the unanimous consent of the

defendants. The unanimity rule alone does not command

that a first served defendant's failure to seek removal

necessarily waives an unserved defendant's right to

seek removal; it only requires that the later-served

defendant receive the consent of all then-served

defendants at the time he files his notice of removal.

Bailey, 536 F.3d at 1207 (citations omitted); see Hill

Dermaceuticals, Inc. v. RX Solutions, 306 Fed. Appx. 450, 453 (11th

Cir. 2008) (“We recently adopted the ‘last-served defendant’ rule,

which accords each defendant thirty days to remove an action.”).

Under the rule, an earlier-served defendant, such as CMT, is

allowed to consent to a timely notice of removal by a later-served

defendant even if it earlier waived the right to independently seek

removal. Bailey, 536 F.3d at 1207. The consent of an

earlier-served defendant to a timely motion by a later-served

defendant may be manifested by “some timely written indication from

each served defendant, or from some person or entity purporting to

formally act on its behalf in this respect and to have authority to

do so, that it has actually consented to such action.” Getty Oil

Corp., Div. of Texaco v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n.

11 (5th Cir. 1988). In this case, it is undisputed that through the

joint Notice of Removal, all Defendants consented to the removal of

this action. See (Doc. 1, Notice of Removal). CAT 5 does not

dispute that third-party defendants ACE and National Casualty

timely filed their Notice of Removal. Accordingly, pursuant to

Bailey, CMT may properly join in National Casualty and ACE’s notice

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 15 of 18
8

Because the undersigned is recommending that Plaintiff’s

motion to remand be denied, no discussion of the principles set

forth by the U.S. Supreme Court in Colorado River Water

Conservation District v. United States, 424 U.S. 800 (1976) is

necessary.

16

of removal even if it had earlier waived its right to independently

seek removal by failing to timely file a notice of removal.

Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533

n.3 (6th Cir. 1999)(A first-served defendant may consent to the

later served defendants’ removal “despite having already failed in

its own efforts to remove”). 

The joint Notice of Removal was timely filed and the unanimity

requirement was met; thus, Plaintiff's Motion to Remand should be

denied. It is so recommended.

IV. Conclusion

Based upon a careful review of Plaintiff’s motion, supporting

briefs, and the briefs in opposition and the response thereto, the

undersigned RECOMMENDS that Plaintiff’s Motion to Remand be

DENIED.8

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.

DONE this 19th day of May, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 16 of 18
9

The Court’s Local Rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

17

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate judge.

See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736, 738

(11th Cir. 1988). The procedure for challenging the findings and

recommendations of the magistrate judge is set out in more detail

in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a

“Statement of Objection to Magistrate Judge’s

Recommendation” within ten days9 after being served with

a copy of the recommendation, unless a different time is

established by order. The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a

copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief

in support of the objection may be deemed an abandonment

of the objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 17 of 18
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2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within fourteen

(14)days of being served with a copy of the statement of objection.

Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate

judge finds that the tapes and original records in this action are

adequate for purposes of review. Any party planning to object to

this recommendation, but unable to pay the fee for a transcript, is

advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of

the transcript.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00633-CG-B Document 53 Filed 05/20/10 Page 18 of 18