Reported / Citable
Background
Sofia Garcia sued Lucky Brothers, Inc. and truck driver Steve Frisby in Texas state court over a March 2023 Interstate 10 collision. Garcia alleged that Frisby, driving a Lucky Brothers tractor-trailer, failed to maintain his lane, struck her vehicle, and pushed it into a concrete retaining wall. Frisby later died from causes unrelated to the crash, and Garcia amended her petition to name his surviving spouse and heir, Yan Frisby.
Garcia did not serve either defendant until more than a year after filing suit. Yan Frisby was served about 388 days after the case began, and Lucky Brothers was served about 402 days after filing. On the day Lucky Brothers received service through the Texas Secretary of State, Garcia’s counsel disclosed medical records showing $98,370.73 in expenses. Lucky Brothers removed on diversity grounds four days later. Garcia sought remand, arguing that Yan Frisby had not properly consented and that removal came after the one-year diversity-removal deadline.
The Court’s Holding
Judge Marcia A. Crone denied both remand motions. The court held that Yan Frisby properly consented to removal: she and Lucky Brothers shared counsel, the notice expressly stated that she consented, and counsel signed as attorneys for both defendants. That combination sufficiently showed counsel’s authority to bind Frisby to the consent.
The court also held that the one-year bar did not require remand because Garcia acted in bad faith to prevent removal under 28 U.S.C. § 1446(c)(1). Although failure to plead a specific damages amount or delay in disclosure alone would not establish bad faith, Garcia’s counsel possessed medical-billing records exceeding $75,000 before suit was filed and waited more than 430 days to disclose them. Combined with the 358-day period of complete inactivity and the delayed service that prevented defendants from removing within one year, the totality supported an inference of intentional circumvention of removal rights.
Key Takeaways
- A co-defendant’s consent to removal can be valid where shared counsel expressly states consent in the notice and signs on behalf of all defendants.
- The diversity one-year removal bar has a narrow bad-faith exception when a plaintiff intentionally prevents timely removal.
- Extended delays in service and disclosure of known damages information can collectively support a bad-faith finding.
Why It Matters
The decision illustrates that the one-year limit on diversity removals is not absolute. Plaintiffs who delay service and withhold known evidence establishing the amount in controversy risk a finding that they manipulated removal procedures.
For defendants, the ruling underscores the value of documenting a plaintiff’s service and disclosure delays when seeking to invoke the bad-faith exception after the one-year deadline.