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holding that an answer that does not expressly consent to removal is insufficient to demonstrate consent
Summary of this case from Unicom Systems, Inc. v. National Louis UniversityOpinion
Case No. 1:00CV879
February 6, 2002
MEMORANDUM ORDER
This case is before the Court on Plaintiff's Motion to Remand [Doc. II 9]. For the reasons that follow, this Motion is GRANTED.
Production Systems, Inc. ("Production Systems") filed its Complaint on August 22, 2000. The Complaint requested a declaratory judgment, relief for breach of contract, bad faith refusal to settle, and unfair and deceptive trade practices, all pursuant to North Carolina law. Defendant Amerisure Insurance Co. ("Amerisure") filed a Notice for Removal on September 11, 2000, in which it alleged that jurisdiction was proper in the Middle District of North Carolina pursuant to 28 U.S.C. § 1332. Defendant Union Insurance Co. ("Union"), however, neither filed a motion for removal nor joined in Amerisure's notice for removal. In fact, Union did not file any pleading specifically notifying the Court that it consented to Amerisure's notice for removal within the necessary time period. Union did, however, file a Motion Enlarging Time [Doc. # 31 and an Answer [Doc. # 11] in this Court. On October 11, 2000, Production Systems filed a Motion to Remand pursuant to 28 U.S.C. § 1447 (c), alleging that Union did not sufficiently consent to removal.
In a case involving multiple defendants, all defendants must consent to removal. Creasy v. Coleman Furniture Corp., 763 F.2d 656, 660 (4th Cir. 1985) (stating, in dicta, that "in a § 1441 case involving multiple defendants, all of the defendants must agree to the removal of the state court action"); Lloyd v. Cabell Huntington Hosp., Inc., 58 F. Supp.2d 694, 697 (S.D.W.Va. 1999); Stonewall Jackson Mem'l Hosp. v. American United Life Ins. Co., 963 F. Supp. 553, 558 (N.D.W.Va. 1997); Martin Oil Co. v. Philadelphia Life Ins. Co., 827 F. Supp. 1236, 1237 (N.D.W.Va. 1993);Mason v. International Business Machines, Inc., 543 F. Supp. 444, 446 (M.D.N.C. 1982). Consent to removal must be official and be communicated by each defendant. Martin Oil Co., 827 F. Supp. at 1237-38; Mason, 543 F. Supp. at 446. Any doubts should be resolved against removal. Hoffman v. Vulcan Materials Co., 19 F. Supp.2d 475, 478 (M.D.N.C. 1998).
In the instant case, Union has failed to officially communicate its consent to the Court. Although Union notes that it advised Amerisure of its consent, this alone is insufficient to express consent because it is not a communication to the court. Stonewall Jackson Mem'l Hosp., 963 F. Supp. at 558; Martin Oil Co., 827 F. Supp. at 1237-38. Union further asserts that its filing of a motion for enlargement of time and Answer in this Court demonstrates consent to Amerisure notice of removal. Union's motion for enlargement of time, however, does not address whether Union in fact consented to the removal. Instead, the motion for enlargement of time simply acknowledges that Amerisure had filed a notice for removal. Union's motion is insufficient to demonstrate consent because it does not actually express consent and can be seen instead as an attempt to ensure that its motion would be heard in the correct court should the case be removed. Union's motion is not the type of official or unambiguous consent envisioned by district courts throughout the Fourth Circuit. Union further asserts that by filing its Answer with this Court, it has communicated its consent to Amerisure's notice of removal. The Answer, like the motion to enlarge time, is insufficient because it does not specifically state that Union consents to Amerisure's notice of removal. The Answer states that subject matter and personal jurisdiction exist in this Court, but does not expressly consent to removal. Furthermore, Union filed its Answer on October 27, 2000, after the thirty-period allotted by 28 U.S.C. § 1446{b) to respond to Amerisure's notice for removal.
Therefore, Production Systems' Motion to Remand is GRANTED. This, the6th day of February, 2002.