Mullins v. Sofia Logistics LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DANNY S. MULLINS,
Plaintiff,
v. 	CIVIL ACTION NO. 2:25-cv-26
(KLEEH)
SOFIA LOGISTICS LLC;
PROGRESSIVE PREFERRED
INSURANCE COMPANY; AND
RAPHAEL DELVA.
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND [ECF NO. 4]
Pending 	before 	the 	Court 	is 	Plaintiff’s 	Motion 	to 	Remand 	to
the Circuit Court of Lewis County, WV [ECF No. 4]. 	For the reasons
discussed 	herein, 	the 	Motion 	is 	GRANTED. 	This 	matter 	is 	hereby
REMANDED to the Circuit Court for any further proceedings.
I. 	PROCEDURAL HISTORY
Plaintiff, Danny S. Mullins (“Plaintiff” or “Mullins”), filed
a Complaint in the Circuit Court of Lewis County, West Virginia on
September 16, 2025. 	ECF No. 1, Ex. 1. 	The Complaint named Sofia
Logistics 	(“Sofia”), 	Progressive 	Preferred 	Insurance 	Company
(“Progressive”), and Raphael Delva (“Delva”) as Defendants to the
present action. 	Id.
After 	being 	served 	with 	the 	Complaint, 	both 	Sofia 	and
Progressive filed timely Notices of Removal. 	On October 16, 2025,
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Sofia filed a Notice of Removal to the United States District Court
for 	the 	Northern 	District 	of 	West 	Virginia. 	ECF 	No. 	1.
Progressive 	filed 	its 	own 	Notice 	of 	Removal 	to 	this 	Court 	on
October 24, 2025.1 	ECF No. 4, Ex. 6, at 1. 	Delva, who was served
with the State Court Complaint on October 10, 2025 [ECF No. 4, Ex.
5], filed a Notice of Consent to Removal on November 13, 2025 [ECF
No. 6].
One day prior, November 12, 2025, Plaintiff filed the subject
Motion 	to 	Remand. 	ECF 	No. 	4. 	On 	November 	17, 	2025, 	Defendants
Sofia and Delva filed a Response to Plaintiff’s Motion to Remand.
ECF No. 7. 	Sofia and Delva then filed an Amended Response to the
Motion 	to 	Remand 	on 	November 	20, 	2025. 	ECF 	No. 	9. 	A 	subsequent
Reply 	was 	filed 	by 	Plaintiff 	Mullins 	on 	November 	24, 	2025. 	ECF
No. 	10. 	Accordingly, 	this 	Motion 	is 	fully 	briefed 	and 	ripe 	for
review.
II. 	FACTUAL BACKGROUND2
Plaintiff Mullins resides in Upshur County, West Virginia. ECF
No. 	1, 	Ex. 	1, 	at 	¶ 	1. 	Defendants 	Sofia 	and 	Progressive 	are
incorporated in and have their principal place of business in Ohio.
Id. 	at 	¶ 	2-4. 	Plaintiff 	alleges 	that, 	at 	all 	relevant 	times,
1 Progressive filed its Notice of Removal under a separate civil action
in this Court (2:25-cv-27). Plaintiff does not dispute that Progressive
filed 	a 	proper, 	timely 	notice 	of 	removal 	for 	purposes 	of 	the 	present
motion.
2 The following facts are taken from Plaintiff’s State Court Complaint
[ECF No. 1. Ex. 1].
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Sofia, 	an 	interstate 	motor 	carrier, 	was 	insured 	through 	a 	policy
issued 	by 	Progressive. 	Id. 	at 	¶ 	3,4. 	Additionally, 	Defendant
Delva 	is 	a 	resident 	of 	the 	State 	of 	Florida 	and, 	at 	the 	time 	of
the subject incident, was allegedly “acting as an agent, servant,
and/or employee [of] Sofia Logistics.” 	Id. at ¶ 7, 8.
On May 28, 2025, Plaintiff alleges he was involved in a roadway
collision 	with 	Delva, 	while 	traveling 	on 	U.S. 	Route 	33. 	Id. 	at 	¶
12, 17. 	Plaintiff alleges that the roadway surface was wet due to
rain, 	that 	Delva 	was 	traveling 	behind 	Plaintiff 	as 	the 	two
approached 	a 	traffic 	signal, 	and 	that 	Delva 	failed 	to 	slow 	down
and 	stop 	his 	truck, 	causing 	Delva 	to 	collide 	with 	the 	rear 	of
Plaintiff’s 	vehicle. 	Id. 	at 	¶ 	13, 	16. 	This 	caused 	Plaintiff’s
vehicle to collide with the vehicle in front of him. 	Id. at ¶ 18.
As 	a 	result, 	Plaintiff 	claims 	he 	suffered 	“severe 	and 	permanent”
injuries. 	Id. at ¶ 23.
III. LEGAL STANDARD
Federal courts “‘are obliged to construe removal jurisdiction
strictly 	because 	of 	the 	significant 	federalism 	concerns
implicated’ and that ‘if federal jurisdiction is doubtful, a remand
to 	state 	court 	is 	necessary.’” 	Palisades 	Collections 	LLC 	v.
Shorts, 552 F.3d 327, 333-34 (4th Cir. 2008) (citations omitted).
This 	Court 	has 	previously 	stated 	that 	“[a]ll 	doubts 	about 	the
propriety of removal should be resolved in favor of retaining state
court jurisdiction.” 	Vitatoe v. Mylan Pharmaceuticals, Inc., 2008
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WL 	3540462, 	at 	*2 	(N.D.W. 	Va. 	Aug. 	13, 	2008) 	(citing 	Hartley 	v.
CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir.1999)).
Under 	28 	U.S.C. 	§ 	1446(b)(1), 	“[t]he 	notice 	of 	removal 	of 	a
civil action or proceeding shall be filed within 30 days after the
receipt 	by 	the 	defendant 	. 	. 	. 	of 	a 	copy 	of 	the 	initial 	pleading
setting 	forth 	the 	claim 	for 	relief[.]” 	When 	there 	are 	multiple
named 	defendants, 	“all 	defendants 	who 	have 	been 	properly 	joined
and served must join in or consent to removal of the action.” 	28
U.S.C. § 1446(b)(2)(A).
Furthermore, 	“[e]ach 	defendant 	shall 	have 	30 	days 	after
receipt by or service on that defendant of the initial pleading or
summons 	. 	. 	. 	to 	file 	the 	notice 	of 	removal.” 	28 	U.S.C. 	§
1446(b)(2)(B). 	The 	Supreme 	Court 	has 	interpreted 	these 	statutes
to 	“require 	all 	defendants 	in 	a 	case 	to 	join 	in 	or 	consent 	to
removal, 	creating 	the 	so-called 	‘rule 	of 	unanimity.’” 	Hartford
Fire 	Ins. 	Co. 	v. 	Harleysville 	Mut. 	Ins. 	Co., 	736 	F.3d 	255, 	259
(4th Cir. 2013)(citing Lapides v. Bd. of Regents of Univ. Sys. of
Ga., 535 U.S. 613, 620 (2002)).
Therefore, 	consent 	by 	all 	named 	Defendants 	“must 	be 	voiced
within 	thirty 	days 	of 	the 	defendant’s 	receipt 	of 	the 	complaint.”
Stonewall Jackson Mem'l Hosp. v. Am. United Life Ins. Co., 963 F.
Supp. 	553 	(N.D.W. 	Va. 	1997) 	(Keeley, 	J.). 	Each 	defendant 	must
“officially and unambiguously consent to a removal petition filed
by 	another 	defendant 	within 	thirty 	(30) 	days 	of 	receiving 	the
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complaint.” 	Eberhart 	v. 	Graycor 	Indus. 	Constructors, 	Inc., 	No.
5:08CV26, 2008 WL 11344680 at *1 (N.D.W. Va. Apr. 10, 2008)(quoting
Martin 	Oil 	Co. 	v. 	Philadelphia 	Life 	Ins. 	Co., 	827 	F. 	Supp. 	1236,
1237 (N.D.W. Va. 1993)).
IV. 	DISCUSSION
In 	Mullins’ 	Motion 	to 	Remand, 	Plaintiff 	requests 	that 	this
Court remand this action to the State Court because Defendant Delva
failed to join in or consent to the removal of this action within
the 30-day period following proper service. 	ECF No. 5, at 4. 	In
response, 	Defendants 	contend 	that 	Plaintiff’s 	suggested 	deadline
for 	Delva’s 	consent 	to 	removal 	is 	miscalculated, 	and 	Delva’s
consent to removal was therefore timely. 	ECF No. 9.
For 	the 	reasons 	stated 	herein, 	this 	Court 	agrees 	with
Plaintiff. 	The 	Court 	finds 	Defendant 	Delva 	did 	not 	file 	his
consent 	to 	removal 	within 	30 	days 	of 	being 	served 	the 	Complaint.
Therefore, removal was defective and remand to the State Court is
proper. 	Accordingly, Plaintiff’s Motion to Remand is GRANTED.
A. The Motion to Remand is GRANTED because Defendant Delva did not
file 	his 	consent 	to 	removal 	by 	the 	proper 	November 	10, 	2025,
deadline, and removal was therefore procedurally defective.
Rule 6 of the Federal Rules of Civil Procedure are instructive
under 	28 	U.S.C. 	§ 	1446(b) 	to 	determine 	the 	proper 	beginning 	and
end 	of 	the 	period 	for 	Defendants 	to 	join 	or 	consent 	to 	removal.
See 	Fleming 	v. 	United 	Teacher 	Assocs. 	Ins. 	Co., 	250 	F. 	Supp. 	2d
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658, 	661 	(S.D.W. 	Va. 	2003). 	Rule 	6 	provides 	that 	when 	the
applicable period is stated in days:
(A) 	exclude 	the 	day 	of 	the 	event 	that
triggers the period;
(B) 	count 	every 	day, 	including 	intermediate
Saturdays, Sundays, and legal holidays; and
(C) 	include 	the 	last 	day 	of 	the 	period, 	but
if the last day is a Saturday, Sunday, or legal
holiday, the period continues to run until the
end 	of 	the 	next 	day 	that 	is 	not 	a 	Saturday,
Sunday, or legal holiday.
Fed. 	R. 	Civ. 	P. 	6(a)(1). 	Additionally, 	Rule 	6(d) 	provides 	for 	a
3-day extension of a deadline after certain types of service such
as when “service is made under Rule 5(b)(2)(C) (mail)[.]” 	Fed. R.
Civ. P. 6(d).
Defendants Delva and Sofia, in their joint Response, contend
that the period for Delva to consent to removal began on Tuesday,
October 	14, 	2025. 	ECF 	No. 	9 	at 	2. 	Specifically, 	Defendants
suggest that October 10, 2025, the day of service, October 11 and
12, 	2025, 	a 	Saturday 	and 	Sunday, 	and 	October 	13, 	2025, 	Columbus
Day, cannot serve as the first day of the period according to Rule
6(a) of the Federal Rules of Civil Procedure. 	Id. 	Thus, according
to 	Defendants, 	the 	correct 	deadline 	for 	Delva 	to 	consent 	was
November 13, 2025, making his consent timely. 	However, Defendants’
reading 	of 	Rule 	6(a)(1)(C) 	is 	incorrect. 	Although 	the 	day 	of
service 	does 	not 	toll 	the 	period, 	Rule 	6(a)(1)(C)’s 	exclusion 	of
“Saturday, 	Sunday, 	or 	legal 	holiday[s]” 	applies 	only 	to 	the 	last
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day of the period, not the first. 	Fed. R. Civ. P. 6(a). 	Therefore,
Defendants’ 	proposed 	November 	13 	deadline 	for 	Delva’s 	consent 	is
misplaced.
Alternatively, 	Defendants 	suggest 	that 	Rule 	6(d) 	extends
Delva’s deadline to consent to removal because service was made by
mail. 	Fed. R. Civ. P. 6(d). However, removal under § 1446(b)(2)(B)
clearly mandates that defendants have “30 days after receipt by or
service 	on 	that 	defendant” 	to 	join 	in 	or 	consent 	to 	removal.
Therefore, 	as 	is 	true 	in 	the 	present 	action, 	where 	there 	is 	no
question 	as 	to 	when 	the 	Defendant 	received 	service,3 	this 	Court
declines 	to 	extend 	a 	Defendant’s 	deadline 	under 	Rule 	6(d). 	Fed.
R. Civ. P.
Here, 	Defendant 	Delva 	was 	served 	with 	the 	State 	Court
Complaint 	on 	October 	10, 	2025. 	ECF 	No. 	4, 	Ex. 	5. 	Therefore,
Delva’s 	deadline 	to 	join 	in 	or 	consent 	to 	removal 	of 	this 	action
was 	November 	10, 	2025.4 	Delva 	filed 	his 	Notice 	of 	Consent 	to
Removal on November 13, 2025. 	ECF No. 7. 	Accordingly, his consent
3 	Defendant 	Delva 	was 	served 	the 	Complaint 	on 	October 	10, 	2025, 	via
United States Postal Service Certified Mail. 	ECF No. 4, Ex. 5. 	Tracking
indicates that Delva personally picked up and signed for the Complaint
on that date. Id.
4 Because the date of service is excluded from the Court’s calculation,
the period begins on October 11, 2025. 	Here, 30 days from the beginning
of the period is November 9, 2025. 	However, that places the deadline
on 	a 	Sunday. 	Therefore, 	the 	proper 	deadline 	for 	Delva 	to 	join 	in 	or
consent was Monday, November 10, 2025.
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was 	untimely, 	removal 	was 	therefore 	procedurally 	defective, 	and
Plaintiff’s Motion to Remand is GRANTED.
V. 	CONCLUSION
For 	the 	reasons 	stated 	herein, 	Plaintiff 	Mullins’ 	Motion 	to
Remand 	to 	the 	Circuit 	Court 	of 	Lewis 	County, 	WV 	[ECF 	No. 	4], 	is
hereby 	GRANTED. 	The 	action 	shall 	be 	STRICKEN 	from 	the 	Court’s
active docket. 	Any remaining pending motions in this action shall
be TERMINATED.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Order 	to
counsel 	of 	record 	and 	the 	Circuit 	Clerk 	of 	Lewis 	County, 	West
Virginia.
DATED: May 4, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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