IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BILLY JOE WHITTINGTON )

and PATRICIA WHITTINGTON, )

)

Plaintiffs, )

)

vs. )CIVIL ACTION NO. 09-0772-KD-C

)

ROBERT WATKINS, et al., )

)

Defendants. )

ORDER

This matter is before the court on the Magistrate Judge’s report and recommendation

(Doc. 37) regarding the removal petition (Doc. 1; see also Docs. 2-3, 5 & 7-9), plaintiff’s

motion to remand (Doc. 10; see also Doc. 11; see Docs. 12-30), the notice of consent to

removal and joinder in removal filed by defendant Robert Watkins on December 23, 2009

(Doc. 31); defendant Conlan Construction company’s objection to the report and

recommendation (Doc. 38); and the plaintiffs’ response thereto (Doc. 42). The Magistrate

Judge’s recommendation is amended and adopted as follows: 

FINDINGS OF FACT

1. Plaintiffs initially filed this negligence, wantonness, and loss of consortium

action in the Circuit Court of Mobile County, Alabama on November 24, 2008. (Doc. 1,

Exhibit B(3), at 1-2) The Conlan Company, with the concurrent consent of co-defendant

Case 1:09-cv-00772-KD-C Document 43 Filed 03/22/10 Page 1 of 11
1 Watkins’ attorney was a signatory to this removal petition. See Whittington v.

Watkins, CA 09-0352-KD-M, Doc. 1, at 4.

2

Robert Watkins,1 removed the action to this Court on June 17, 2009, alleging diversity of

citizenship and pointing to documentation received by the defendants indicating that Billie

Joe Whittington’s medical expenses arising from the November 14, 2008 motor vehicle

accident, made the basis of his lawsuit, totaled $148,430.39. See Whittington v. Watkins, CA

09-0352-KD-M, Doc. 1. This Court remanded the action to the Mobile County Circuit Court,

by order dated September 23, 2009, on the basis that the documentation upon which the

removing defendants purported to predicate subject-matter jurisdiction was not received from

the plaintiffs and, therefore, under Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 n.63

(11th Cir. 2007), cert. denied sub nom. Hanna Steel Corp. v. Lowery, U.S. , 128 S.Ct.

2877, 171 L.Ed.2d 812 (2008), such documentation did not constitute “other paper” under

the second paragraph of 28 U.S.C. § 1446(b). (See Doc. 1, Exhibits B(3)-B(4))

2. The Conlan Company filed another notice of removal on November 24, 2009,

one year to the day following the filing of plaintiffs’ complaint. (Compare Doc. 1, at 1 with

Doc. 1, Exhibit A, COMPLAINT) This notice of removal reads, in relevant part, as follows:

5. Through recent State court discovery, Conlan has

received Plaintiff Billy Joe Whittington’s [] certified medical

records, including certified copies of the Plaintiff’s medical

bills. Furthermore, Conlan took the depositions of the various

record custodians of the Plaintiff’s medical providers which

show, by a preponderance of the evidence, that the amount in

controversy in this action exceeds $75,000.00.

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The Plaintiff, Billy Whittington, indicated in his

discovery responses to Conlan’s First Set of Interrogatories and

Requests for Production, and in his responses to Conlan’s

Request for Admissions, that he received treatment for injuries

made the basis of his Complaint at Vanderbilt University

Medical Center, Vanderbilt University Stallworth

Rehabilitation, Star Physical Therapy, and The University of

South Alabama Hospitals. The Plaintiff has also acknowledged

that he is seeking a claim for lost wages. The Plaintiff’s

responses and supplemental responses to Interrogatories 18 and

19 of Conlan’s First Set of Interrogatories and Requests for

Production indicate that the Plaintiff has not sustained any

injuries after the accident made the basis of the Plaintiff’s

complaint, and that the only injur[y] the Plaintiff suffered prior

to the accident w[as] a broken foot in 2002 where the Plaintiff

recovered 100%.

Conlan has taken the depositions of the billing records

custodians of the Plaintiff’s referenced medical providers and

has obtained certified copies of the Plaintiff’s medical records

from Vanderbilt University Medical Center, Star Physical

Therapy, Vanderbilt University Stallworth Rehabilitation, and

The University of South Alabama Hospitals. The testimony

from these depositions and the certified records associated

therewith clearly prove that Plaintiff, Billy Joe Whittington, has

received treatment in the amount of $115,777.74. 

...

6. . . . Conlan has now received certified documents

and sworn deposition testimony that the amount in controversy

exceeds $75,000.00. The certified records were produced in

response to a valid release offered by the Plaintiff. Exhibit I(1)

reveals a total of $50,717.66 of treatment, Exhibits J(1)(a) []

shows the Plaintiff’s medical treatment was $11,090.00.

Exhibits K(1) and L(1) show the Plaintiff’s treatment at these

medical institutions was $34,587.48 and $19,382.60,

respectively. The total amount of certified bills which have been

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2 It is clear to the undersigned, after considering all record evidence, that November

21, 2009 is the date upon which the removing party is stating that it received the deposition

transcripts, inasmuch as it is clear that the depositions made the basis of this second removal

occurred on either November 11, 2009 (see Doc. 2, Exhibit I, Deposition of Tiffany Henderson;

Doc. 5, Exhibit J, Deposition of Damon Adelgren; Doc. 7, Exhibit K, Deposition of Shelly

Manus) or November 16, 2009 (Doc. 9, Exhibit L, Deposition of Teresa M. Englestead).

4

confirmed through deposition testimony are $115,777.74. If the

lost wage claim is added to these medical bills, the total amount

in controversy would be at least $141,631.74[] ($115,777.74 +

25,854.00). These documents show by a preponderance of the

evidence, pursuant to Lowery v. Alabama Power Company, 483

F.3d 1184 (11th Cir. 2007), that the amount in controversy is

well in excess of $75,000.00. . . . Conlan respectfully requests

this Honorable Court weigh the evidence attached to this Notice

of Removal, which was obtained in State court discovery,

pursuant to the holding in Lowery. Engaging in such an

assessment would not be “guess work” and would not require

speculation, as the evidence submitted consists of certified

records and sworn testimony. Deposition testimony is “other

paper” which can be considered by this Honorable Court. 

In addition to the medical records obtained, an offer of

judgment in the amount of $100,000.00 was made to the

Plaintiffs by Conlan on October 21, 2009. The Plaintiffs,

through their non-response to the same, rejected this offer of

judgment, which is further evidence that they seek more than

$100,000.00 from Conlan in this action. Additionally, Defendant

Robert Watkins sent the Plaintiff a letter dated October 21,

2009, wherein Watkins discussed removal and asked the

Plaintiffs, in good faith, to stipulate that the Plaintiffs would not

seek more than $75,000.00 in this action. The Plaintiffs refused

to sign this stipulation which is further evidence that the amount

in controversy exceeds $75,000.00. 

7. The November 21, 20092

 depositions confirmed

the amount of the Plaintiff’s medical bills contained in the

certified records, and this action is removed within thirty (30)

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days of notice thereof to Conlan pursuant to 28 U.S.C. §

1446(b) and Lowery.

8. Defendant Robert Watkins consents to and joins

in said removal pursuant to 28 U.S.C. § 1446(a).

(Doc. 1, at 3-4, 5 & 6-7 (internal citations omitted; emphasis supplied))

3. While Conlan’s removal petition clearly states that Watkins was consenting to

same (Doc. 1, ¶ 8), Watkins’ attorney did not sign this removal petition, as he had the

previous one (compare Doc. 1, at 8 with Whittington v. Watkins, CA 09-0352-KD-M, Doc.

1, at 4), and Watkins did not file his written notice of consent to removal and joinder in

removal until December 23, 2009 (Doc. 31), several hours after plaintiffs identified the lack

of unanimity in their motion to remand (compare id. with Doc. 11, at 3-4 & 5-9). Of course,

December 23, 2009 falls more than thirty (30) days after the date upon which Conlan

identifies in the removal petition as the date the case became removable (see Doc. 1, at ¶ 7

(“The November 21, 2009 depositions confirmed the amount of the Plaintiff’s medical bills

contained in the certified records, and this action is removed within thirty (30) days of notice

thereof to Conlan pursuant to 28 U.S.C. § 1446(b) and Lowery.”)) and almost one month to

the day after the one-year period for removal provided by statute, see 28 U.S.C. § 1446(b)

(“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

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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 more than 1 year after

commencement of the action.” (emphasis supplied)). 

CONCLUSIONS OF LAW

1. “Federal courts are courts of limited jurisdiction, and there is a presumption

against the exercise of federal jurisdiction, such that all uncertainties as to removal

jurisdiction are to be resolved in favor of remand.” Russell Corp. v. American Home

Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citation omitted); see also Allen v.

Christenberry, 327 F.3d 1290, 1293 (11th Cir.) (“[R]emoval statutes should be construed

narrowly, with doubts resolved against removal.”), cert. denied, 540 U.S. 877, 124 S.Ct. 277,

157 L.Ed.2d 140 (2003); Jeffcoat v. American Gen’l Life & Acc. Ins. Co., 2001 WL 611196,

*1 (M.D. Ala. 2001) (“Removal statutes must be strictly construed because of the significant

federalism concerns raised by removal jurisdiction. . . . ‘All doubts [and uncertainties] about

federal court jurisdiction must be resolved in favor of a remand to state court.’”). In Russell

Corp., supra, the Eleventh Circuit recognized that even though some might regard certain

bright-line “limitations on federal removal jurisdiction (e.g. the removal bar for in-state

defendants and the one year time limit for diversity removals)” as arbitrary and unfair, those

limitations “are an inevitable feature of a court system of limited jurisdiction that strictly

construes the right to remove.” 264 F.3d at 1050; see Jerrell v. Kardoes Rubber Co., Inc.,

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348 F.Supp.2d 1278, 1283 (M.D. Ala. 2004) (“Removal is a statutory privilege, rather than

a right, and the removing party must comply with the procedural requirements mandated in

the statute when desirous of availing the privilege.”). 

2. 28 U.S.C. § 1446(b) provides that “[t]he 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[.]” (emphasis added)

3. The unanimity rule “requires that the later-served defendant receive the consent

of all then-served defendants at the time he files his notice of removal.” Bailey v. Janssen

Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir. 2008). 

4. Consent is indicated either by signing the original petition or by timely filing a

written indication of consent to removal. Getty Oil Corp., a Div. of Texaco, Inc. v. Insurance

Co. of North America, 841 F.2d 1254, 1262, fn.11 (5th Cir. 1988). Consent has been

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considered timely when it is filed within the time period prescribed in 28 U.S.C. §1446(b),

i.e., 30 days from service on the removing defendant of the initial complaint, or 30 days from

service on the removing defendant of the “amended complaint, motion, order or other paper”.

However, even these time limits are narrowed by the no “more than one year after

commencement of action” removal limitation. Specifically, just as a removing defendant’s

30 day window of opportunity to remove may be further limited by the 1 year limitation, so

is the 30 day window for timely consent to removal. 

5. A lack of unanimity in removal, along with the often hand-in-hand statutory

time limit for removal petitions, are procedural defects as opposed to jurisdictional defects,

compare Hernandez v. Seminole County, Florida, 334 F.3d 1233, 1237 (11th Cir. 2003)

(“‘The failure to join all defendants in the petition is a defect in the removal procedure.’”)

with Wilson v. General Motors Corp., 888 F.2d 779, 781 n.1 (11th Cir. 1989) (“‘The

statutory time limit for removal petitions is merely a formal and modal requirement, and is

not jurisdictional.’”). Accordingly, such procedural defects can be waived by a plaintiff’s

failure to timely file a motion to remand. Id. at 781 n.1 (“Under 28 U.S.C. [§] 1447(c) []

which now governs timing for remand petitions, a motion for remand for ‘defect[s] in

removal procedure’ must be filed within 30 days of notice of removal[.] . . . Petitioning for

removal outside the 30-day window constitutes a defect in removal procedural which may

be waived by failure to timely file a motion for remand.”). 

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6. While Conlan contends in its response that the purported procedural “defect”

of lack of “timely” unanimity “should be waived[,]” (Doc. 33, at 5) this Court cannot find

such waiver given that the plaintiffs timely filed their motion to remand on December 23,

2009 (Doc. 10), that is, within thirty (30) days of the filing of the notice of removal (see Doc.

1 (notice of removal filed November 24, 2009)), and therein raised the unanimity defect

(compare Doc. 11, at 3-4 & 5 (“Conlan’s removal motion is procedurally defective in that

it does not demonstrate that Watkins has consented to the removal as required by 28 U.S.C.

§ 1446(a). [] Although the notice states that Watkins consents to and joins in the petition, no

lawyer representing Watkins, nor has Watkins himself, signed the petition as required by §

1446 nor have they filed an endorsement. . . . [S]ection [1446(a)] has consistently been

interpreted to mean that all defendants, other than nominal defendants which Watkins is not,

must consent to or join in the petition for removal in order for same to be procedurally

correct and valid.”) with 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of

any defect other than lack of subject matter jurisdiction must be made within 30 days after

the filing of the notice of removal under section 1446(a).”). Thus, the plaintiffs in this case

have properly preserved and timely raised the contention that removal in this case was

defective for want of timely unanimous consent. 

7. Conlan also contends that Watkins timely joined the second notice of removal by

filing in this Court his written notice of consent to removal and joinder in removal within 30

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 In the defendants’ objection to the report and recommendation they argue that

Bailey v. Janssen supports their contention. In Bailey the court addressed the timing of filing a

removal petition and held that the last served defendant can file a removal petition which may be

joined by previously served defendants. Bailey, 536 F.3d 1202. Bailey did not alter the

requirement of consent of all served defendants at the time of removal. 

4 That Conlan could have gotten Watkins’ attorney to sign the removal petition, or

alternatively, could have obtained this defendant’s written endorsement, cannot be gainsaid

given that Watkins’ attorney was a signatory to the first removal petition filed in this matter.

10

days of his receipt of the second notice of removal and attached exhibits. (Doc. 33, at 4

(“Conlon submits that Watkins had 30 days from the receipt of the second notice of removal

and attached exhibits in which to file a consent to removal pursuant to 28 U.S.C. § 1446(a)

and (b) and that Watkins timely joined the second notice of removal.”)) Conlon, however,

cites to no case which supports its theory in this regard.3

8. Watkins filed his notice of consent to removal and joinder in Conlan’s second

removal (Doc. 31) some twenty-nine (29) days after the one-year period for removal expired

under the statute (compare id. (filed December 23, 2009) with Doc. 1, Exhibit A (plaintiffs’

complaint filed in the Mobile County Circuit Court on November 24, 2008) and 28 U.S.C.

§ 1446(b) (“[A] case may not be removed on the basis of jurisdiction conferred by section

1332 of this title more than 1 year after commencement of the action.”)). Accordingly, the

only way Watkins’ consent to removal and joinder in removal could have been timely was

for his attorney to sign the removal petition or otherwise provide Conlan with a written

endorsement of the removal to be filed as an attachment to the removal petition.4

Accordingly, the plaintiff’s motion to remand (Doc. 10) is GRANTED and the case

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is REMANDED to the Circuit Court of Mobile County, Alabama.

DONE and ORDERED this the 19th day of March, 2010.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE 

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