Opinion
No. 1:04-cv-040.
December 20, 2004
MEMORANDUM
Plaintiff Tasha Dawn Davis moves pursuant to 28 U.S.C. § 1447(c) to remand this case to the Circuit Court of Marion County, Tennessee. [Court File No. 4]. Plaintiff contends inter alia that the removal is procedurally defective because all defendants did not timely join in or consent to removal. After reviewing the record, the Court concludes the motion to remand on this ground is well taken and it will be GRANTED. I. Facts
On January 21, 2004, plaintiff filed her complaint in the Circuit Court of Marion County, Tennessee. Defendants Town of Signal Mountain and Spencer Daniels ("Daniels") were served with process on January 23, 2004. Plaintiff effected service of process upon defendants Hamilton County, Tennessee, and Marty Ray ("Ray") on January 28, 2004.
The Town of Signal Mountain and Daniels filed a notice of removal on February 9, 2004. [Court File No. 1]. The notice is signed by attorney Robert H. Watson, Jr. ("Watson") solely in his capacity as counsel for the Town of Signal Mountain and Daniels. Attorney Watson does not represent Hamilton County and Ray. Watson was not authorized to sign the notice of removal for Hamilton County and Ray, and Watson did not purport to do so. The notice does not contain signature lines for Hamilton County and Ray or their counsel. Hamilton County and Ray did not sign or join in the notice of removal, and they did not authorize Watson to sign the notice of removal on their behalf. Moreover, Hamilton County and Ray did not timely file with this Court a separate notice of removal or written consent to removal signed by them or by their attorney under 28 U.S.C. § 1446(a) and FED. R. CIV. P. 11.
Paragraph 6 of the notice of removal states in part: "Consultation has been made with counsel for Defendants Hamilton County, Tennessee, and Marty Ray and no objections have been raised to the removal of this case. . . ." Counsel for the Town of Signal Mountain and Daniels represented to this Court that he (Watson) had consulted with the attorney for Hamilton County and Ray, and that Hamilton County and Ray had no objection to removal. In other words, Hamilton County and Ray, acting through their attorney, orally communicated to Watson that they consented and did not object to removal. In the notice of removal, Watson informed the Court of his oral communication with counsel for Hamilton County and Ray. Hamilton County and Ray did not file directly with this Court a written consent to removal signed by them or their attorney under 28 U.S.C. § 1446(a) and FED. R. CIV. P. 11.
The question arises whether the notice of removal is sufficient to constitute a valid joinder in removal or consent to removal by Hamilton County and Ray. Plaintiff filed her motion to remand on March 2, 2004, contending that Hamilton County and Ray did not timely join in or consent to removal.
On March 5, 2004, Hamilton County and Ray filed a document captioned "REAFFIRMATION OF CONSENT TO REMOVAL OF CASE TO FEDERAL COURT." [Court File No. 5]. Hamilton County and Ray assert that, pursuant to 28 U.S.C. § 1446, they "reaffirm" their consent to removal. The document also states that Hamilton County and Ray "show that notice of their consent to such removal was previously contained in the Notice of Removal filed by the Town of Signal Mountain and Spencer Daniels."
II. Analysis
Defendants argue that all defendants joined in or consented to removal of this case. Defendants rely on the notice of removal filed by the Town of Signal Mountain and Daniels on February 9, 2004. Defendants contend the notice of removal made it sufficiently clear that Hamilton County and Ray consented to removal. Defendants argue there is no rule in the Sixth Circuit that requires Hamilton County and Ray to file a separate pleading or written document with this federal district court consenting to removal. To the extent the notice of removal may be ambiguous, defendants say the "reaffirmation of consent to removal" filed by Hamilton County and Ray on March 5, 2004, resolves any ambiguity and clarifies that Hamilton County and Ray were consenting to removal in the notice of removal.
The defendants' arguments fail. The right to removal is purely statutory. It is well settled that because a federal court's jurisdiction under the removal statutes encroaches or infringes upon state sovereignty and implicates principles of comity and federalism, the federal statutes governing removal are narrowly construed in favor of state court jurisdiction. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); First Nat. Bank of Pulaski v. Curry, 301 F.3d 456, 462 (6th Cir. 2002); Long v. Bando Mfg. of America, Inc., 201 F.3d 754, 757 (6th Cir. 2000); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999); Alexander v. Electronic Data Systems Corp., 13 F.3d 940, 948 (6th Cir. 1994); Local Union No. 172 Int'l Ass'n v. P.J. Dick, Inc., 253 F. Supp.2d 1022, 1025 (S.D. Ohio 2003).
Generally, notices of removal must be strictly construed with all doubts resolved against removal. Her Majesty The Queen v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989); Wilson v. U.S. Department of Agriculture, 584 F.2d 137, 142 (6th Cir. 1978). The burden of showing the propriety of removal rests with the removing party. Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97-98 (1921); Long, 201 F.3d at 757; Alexander, 13 F.3d at 948; Gafford v. General Elec. Co., 997 F.2d 150, 155 (6th Cir. 1993); Her Majesty The Queen, 874 F.2d at 339.
28 U.S.C. § 1446 provides in pertinent part:
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) 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.28 U.S.C. § 1446(a) has been interpreted as requiring that all then served and properly joined defendants, except merely nominal and formal defendants, must join in the notice of removal or consent to removal. This is commonly referred to as the "rule of unanimity." Getty Oil, Div. of Texaco v. Ins. Co. of North Am., 841 F.2d 1254, 1261 n. 9 (5th Cir. 1988); Reed v. Chesney, 709 F. Supp. 792, 794 (E.D. Mich. 1989); Godman v. Sears, Roebuck and Co., 588 F. Supp. 121, 123 (E.D. Mich. 1984); 14C CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERALPRACTICE AND PROCEDURE: JURISDICTION § 3731 (3d ed. 1998).
The Sixth Circuit has adopted the rule of unanimity. Loftis v. United Parcel Service, Inc., 342 F.3d 509, 516 (6th Cir. 2003); Brierly, 184 F.3d at 533-34 n. 3; see also Hicks v. Emery Worldwide, Inc., 254 F. Supp.2d 968, 972 (S.D. Ohio 2003); P.J. Dick, 253 F. Supp.2d at 1024. In Loftis, 342 F.3d at 516, the Sixth Circuit holds that all defendants in a civil action must unanimously join in the removal petition (notice of removal) or file their consent to removal in writing within thirty days of receipt of (1) a summons when the plaintiff's initial pleading demonstrates the case is one that may be removed, or (2) other paper in the case from which it can be ascertained that a previously unremovable case has become removable. Failure to timely obtain unanimous written consent to removal from all defendants forecloses the opportunity for removal under 28 U.S.C. § 1446.
The Sixth Circuit rendered its decision in Loftis on August 26, 2003, prior to plaintiff Tasha Davis filing her complaint in the Marion County Circuit.
Prior to Loftis, there was some authority for the proposition that a defendant's consent to removal could be orally communicated to the Court. See, e.g., Knickerbocker v. Chrysler Corp., 728 F. Supp. 460, 461 (E.D. Mich. 1990); Fellhauer v. Geneva, 673 F. Supp. 1445, 1447 (N.D. Ill. 1987); Godman, 588 F. Supp. at 124. However, the explicit reference in 28 U.S.C. § 1446(a) to "a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure" strongly suggests that a defendant's communication of consent to removal must be in writing signed by the defendant or by the defendant's attorney. Smith v. Union Nat. Life Ins. Co., 187 F. Supp.2d 635, 640-41 (S.D. Miss. 2001); Spillers v. Tillman, 959 F. Supp. 364, 368-69 (S.D. Miss. 1997).
Loftis, 342 F.2d at 516, holds that all defendants are required to join in the removal petition or file their consent to removal in writing. Loftis does not allow a defendant to orally communicate its consent to removal. Based on Loftis, the rule in the Sixth Circuit is that a defendant's consent to removal must be in writing. See also Brierly, 184 F.3d at 533-34 n. 3 (defendant must file written consent).
This Court finds that Hamilton County and Ray did not join in the notice of removal filed by the Town of Signal Mountain and Daniels. The notice of removal is not signed by Hamilton County and Ray or their attorney as required by 28 U.S.C. § 1446(a) and
FED. R. CIV. P. 11. There is nothing in the notice of removal, or otherwise in the record, showing that Watson had authority to sign the notice of removal on behalf of Hamilton County and Ray for the purpose of complying with 28 U.S.C. § 1446(a) and FED. R. CIV. P. 11. Watson does not represent Hamilton County and Ray. Watson signed the notice of removal solely in his capacity as counsel for the Town of Signal Mountain and Daniels. The manner in which the notice of removal is drafted and executed clearly establishes that the notice is being filed only by the Town of Signal Mountain and Daniels.
The notice of removal states that after consultation, counsel for Hamilton County and Ray orally advised Watson that they had no objection to removal. This is not the equivalent of counsel for Hamilton County and Ray signing the notice of removal on their behalf pursuant to 28 U.S.C. § 1446(a) and FED. R. CIV. P. 11, and formally joining them in the notice of removal. For Hamilton County and Ray to properly join in the notice of removal, it is necessary for Hamilton County and Ray, or their attorney, to sign the notice of removal pursuant to § 1446(a) and FED. R. CIV. P. 11 which was not done. To "join" a notice of removal is to support it in writing. See Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997); Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994) (notice of removal filed by one defendant is deficient and does not constitute all defendants "joining" in removal where notice merely states that co-defendants do not object to removal and co-defendants do not sign notice); Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D. Kan. 1996).
Moreover, Hamilton County and Ray did not file a consent to removal in writing with this Court within the thirty-day time limit under 28 U.S.C. § 1446(b), and Loftis, 342 F.3d at 516. Plaintiff effected service of process upon Hamilton County and Ray on January 28, 2004. Hamilton County and Ray had thirty days from January 28, 2004, within which to join in a notice of removal or file their consent to removal in writing with this Court. Hamilton County and Ray did not at any time within this thirty-day limit file a document with the Court signed by them or their attorney stating that Hamilton County and Ray consented to removal of the case. The first and only writing that Hamilton County and Ray filed with this Court, signed by their attorney in compliance with FED. R. CIV. P. 11, indicating their desire to consent to removal is the "reaffirmation of consent to removal" filed on March 5, 2004. [Court File No. 5]. The "reaffirmation" or written consent to removal comes too late and falls outside the thirty-day time limit mandated by 28 U.S.C. § 1446(b). See Marshall v. Skydive America South, 903 F. Supp. 1067, 1069-70 (E.D. Tex. 1995).
The unusual procedure utilized by the defendants does not comply with 28 U.S.C. § 1446(a) and (b), and it fails to satisfy the rule of unanimity adopted by the Sixth Circuit in Loftis, 342 F.3d at 516. The great weight of legal authority is contrary to the defendants' position. The overwhelming majority rule is that a defendant's consent to removal must be communicated directly to the Court and not merely communicated to or through a co-defendant. In multi-defendant cases, one defendant may not speak for a co-defendant with regard to consent to removal. One defendant's attempt to speak on behalf of another defendant will not suffice. It is not enough that the removing party in its notice of removal states that the other defendants consent or do not object to removal. Roe, 38 F.3d at 301; Green v. Target Stores, Inc., 305 F. Supp.2d 448 (E.D. Pa. 2004); Lampkin v. Media General, Inc., 302 F. Supp.2d 1293 (M.D. Ala. 2004); P.J. Dick, 253 F. Supp.2d at 1024-26; Amteco, Inc. v. BWAY Corp., 241 F. Supp.2d 1028 (E.D. Mo. 2003); Dorsey v. Borg-Warner Automotive, Inc., 218 F. Supp.2d 817 (S.D. W.Va. 2002); Sansone v. Morton Mach. Works, 188 F. Supp.2d 182 (D.R.I. 2002); Smith, 187 F. Supp.2d at 640-47; Codapro Corp. v. Wilson, 997 F. Supp. 322 (E.D.N.Y. 1998); Stonewall Jackson Memorial Hosp. v. American United Life Ins., 963 F. Supp. 553, 557-59 (N.D. W.Va. 1997); Spillers, 959 F. Supp. at 369-72; Michaels v. State of New Jersey, 955 F. Supp. 315, 320-21 (D.N.J. 1996); Nathe v. Pottenberg, 931 F. Supp. 822, 824-25 (M.D. Fla. 1995); Henderson, 920 F. Supp. at 1187; Anne Arundel County, Maryland v. United Pacific Ins. Co., 905 F. Supp. 277 (D. Md. 1995); Marshall, 903 F. Supp. at 1069-70; Landman v. Borough of Bristol, 896 F. Supp. 406, 408-09 (E.D. Pa. 1995); Todd v. DSN Dealer Serv. Network, 861 F. Supp. 1531, 1535 (D.C. Kan. 1994); Ogletree v. Barnes, 851 F. Supp. 184 (E.D. Pa. 1994); Production Stamping Corp. v. Maryland Casualty Co., 829 F. Supp. 1074, 1076-77 (Ed. Wis. 1993); Martin Oil Co. v. Philadelphia Life Ins. Co., 827 F. Supp. 1236, 1237 (N.D. W.Va. (1993); Creekmore v. Food Lion, Inc., 797 F. Supp. 505, 508-09 (E.D. Va. 1992); Samuel v. Langham, 780 F. Supp. 424, 427-28 (N.D. Tex. 1992); Luckett v. Harris Hospital-Fort Worth, 764 F. Supp. 436, 442 (N.D. Tex. 1991); Moody v. Commercial Ins. Co. of Newark, 753 F. Supp. 198 (N.D. Tex. 1990); Knickerbocker, 728 F. Supp. at 461-62; Godman, 588 F. Supp. at 124.
Each defendant must independently and unambiguously communicate to the Court consent to removal. This does not mean that all defendants are required to sign the same notice of removal. The procedural rules governing removal are not applied in such an overly formalistic manner. Rather, 28 U.S.C. § 1446(a) and (b) and the rule of unanimity require that each defendant file a notice of removal, either independently or by joining in or consenting in writing to another defendant's notice of removal, within the thirty-day time limit following service of process. P.J. Dick, 253 F. Supp.2d at 1025; Amteco, 241 F. Supp.2d at 1030; Freeman, 936 F. Supp. at 325. There must be some timely filed written notice "from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have the authority to do so, that it has actually consented to" removal. Otherwise, there would be nothing in the record to formally "bind" the allegedly consenting defendant. Getty Oil, 841 F.2d at 1261-62 n. 11; accord Miller v. First Sec. Investments, Inc., 30 F. Supp.2d 347, 351 (E.D.N.Y. 1998); Henderson, 920 F. Supp. at 1187 n. 2; Marshall, 903 F. Supp. at 1070.
The instant case is indistinguishable from Knickerbocker, 728 F. Supp. 460. In Knickerbocker, a plaintiff filed suit against defendants Chrysler Corporation and Jonick Company, Inc. Defendant Jonick filed a removal petition stating that co-defendant Chrysler did not object to removal. Chrysler did not sign and join in the notice of removal, or file its own notice of removal, or communicate its consent to removal directly to the federal district court. The district court in Knickerbocker granted the plaintiff's motion to remand after determining that Chrysler failed to comply with the rule of unanimity and the filing requirement of 28 U.S.C. § 1446. Knickerbocker stands for the proposition that where one defendant files a notice of removal and states therein that a co-defendant does not object to removal, this is insufficient to satisfy the filing requirement of 28 U.S.C. § 1446 and the rule of unanimity that each defendant join in or consent to removal.
This Court is also guided by Henderson, 920 F. Supp. 1184, where the plaintiff filed suit against defendants Ford Motor Company and Darren Holmes. Ford filed a notice of removal stating that co-defendant Holmes did not object to removal of the case and had given his consent to Ford's filing of the notice of removal. The notice of removal was signed only by Ford's counsel. Holmes did not timely file a separate written notice of consent to removal signed by Holmes or his attorney. The district court in Henderson granted the plaintiff's motion to remand on the ground that defendant Holmes had failed to timely consent to removal.
Consistent with Loftis, 342 F.3d at 516, and the caselaw cited supra, this Court has long adhered to and followed the majority rule that each defendant is required to communicate consent to removal directly to the Court within the thirty-day time limit mandated by 28 U.S.C. § 1446(b). Based on the facts and circumstances in the present case, the Court is not persuaded there is any good reason to depart from this rule.
The bottom line is that Hamilton County and Ray cannot join in or consent to removal by making oral statements to the attorney representing co-defendants Daniels and the Town of Signal Mountain. Moreover, Hamilton County and Ray cannot join in or consent to removal by having their co-defendants include a statement in the notice of removal that Hamilton County and Ray have been consulted and they do not object to removal. Rather, Hamilton County and Ray are required to independently, unambiguously communicate their consent to removal directly to the Court in writing within the thirty-day time limit mandated by 28 U.S.C. § 1446(b), and the written communication must be signed by Hamilton County and Ray or their attorney pursuant to 28 U.S.C. § 1446(a) and FED. R. CIV. P. 11.
The Court concludes that the defendants have not satisfied the procedural requirements for removal under 28 U.S.C. § 1446(a) and (b). The removal is procedurally defective because defendants have not complied with the rule of unanimity. Defendants Hamilton County and Ray did not timely join in or file their written consent to removal with the Court. Accordingly, the plaintiff's motion to remand [Court File No. 4] will be GRANTED pursuant to 28 U.S.C. § 1447(c). A separate order will enter.