The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge.
MEMORANDUM & DECISION AND ORDER
Presently before the Court is Plaintiffs' motion for remand. For the
following reasons Plaintiffs' motion is GRANTED.
Plaintiffs originally filed the above captioned complaint against
Defendants on September 12, 2000 in the New York State Supreme Court in
Albany County. On September 19, 2000, defendant Prestige Motors, Inc.
("Prestige") was personally served with a copy of the Summons and
Complaint. On September 22, 2000, defendant Mercedes Benz USA, Inc.
("Mercedes") was also served with a copy of the Summons and Complaint. On
October 19, 2000, one month after the first defendant was served,
defendant Mercedes removed the action to this Court pursuant to
28 U.S.C. § 1441(a) alleging that because the parties were completely
diverse the case could have originally been filed here. At the time
Mercedes filed its removal petition it did not obtain the consent of
defendant Prestige. Mercedes claims that it had no way of knowing that
defendant Prestige was an actual party to the suit at the time it filed
its removal petition because Plaintiffs failed to file proof of service
upon Prestige with the Albany County Clerk's office until October 20,
2000. Nevertheless, on December 11, 2000 defendant Prestige submitted an
affidavit with this Court indicating that it consented to Mercedes'
October removal. Plaintiffs argues, in part, that because Prestige did
not consent to the October removal petition when it was originally
filed, this Court should remand the case back to state court.
A. General Principles for Removal
Under 28 U.S.C. § 1441, state court defendants may remove the state
action to federal court if it could have been originally filed in federal
court and the defendant files a notice of removal with the federal court
within thirty days after service of the state court complaint. See
28 U.S.C. § 1441(a); 28 U.S.C. § 1446; McClelland v. Longhitano,
140 F. Supp.2d 201, 202 (N.D.N.Y. 2001). The removing party has the
burden to demonstrate not only the jurisdictional basis for removal, but
also necessary compliance with the statutory removal requirements. See
Maybruck v. Haim, 290 F. Supp. 721, 724 (S.D.N.Y. 1968). Additionally,
because federal courts are courts of limited jurisdiction and removal
implicates significant concerns of judicial comity and federalism, the
removal statute must be strictly construed. See Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 109 (1941); In re NASDAQ Mkt. Makers
Antitrust Litig., 929 F. Supp. 174, 178 (S.D.N Y 1996).
B. Unanimity Requirement in Cases with Multiple Defendants
When a case has multiple defendants it is generally accepted that
timely consent of each defendant is required as a precondition for
removal. See Chicago, Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245,
249 (1900); Bradford v. Harding, 284 F.2d 307, 309 (2d Cir. 1960); Sentry
Mktg. v. Unisource Worldwide, Inc., 42 F. Supp.2d 188, 191 (N.D.N Y
1999). Absent such consent, the removal petition is defective and the
usual course of conduct is for the
federal court to remand the action
back to state court. See Forum Ins. Co. v. Texarkoma Crude and Gas Co.,
No. 92 CIV 8602, 1993 WL 228023, at *2 (S.D.N.Y. June 22, 1993). While
each defendant must consent to the removal petition, it is not required
that all defendants sign the removal petition itself. See Town of Moreau
v. State Dep't of Envtl. Conservation, No. 96-CV-983, 1997 WL 243258, at
*6 (N.D.N.Y. May 5, 1997). Rather, courts typically require that each
defendant timely submit some form of "unambiguous written evidence of
consent." Id. at *4.
C. Timeliness of Consent to Removal Petition
There are three separate rules that Courts have fashioned to determine
the timeliness of a defendant's consent to a removal petition. According
to the majority view ("first served controls rule"), consent is
considered timely if it is received within thirty days of service upon
the first-served defendant. See id. at *6. Other courts have fashioned
a rule measuring the timeliness of each defendant's consent from the date
that the last defendant is served with process ("last served controls
rule"). See Weimer v. City of Johnstown, 931 F. Supp. 985, 991
(N.D.N.Y. 1996). Rejecting both rules and adopting an intermediate
approach, at least one Circuit has held that the consent of each defendant
is, in part, measured on the date that each is served ("McKinney Rule").
See McKinney v. Bd. of Trustees of Md. Cmty. Coll., 955 F.2d 924, 928
(4th Cir. 1992). Under the McKinney rule "the first served defendant
must petition for removal within thirty days" of service or its inaction
will prevent later served defendants from removing the case. See id. at
926. Assuming it does so, later served defendants have thirty days from
the time they are served with process to join the otherwise validly filed
removal petition. See id. at 928. The rationale underpinning the Fourth
Circuit's conclusion is that under the "first served controls rule,"
plaintiffs could use dilatory tactics to overcome the legitimate removal
rights of defendants. Id. As the Fourth Circuit cogently observed when
rejecting the "first served controls rule:"
Suppose, for example, plaintiff serves defendant A,
thus starting the thirty day period running, and then
maneuvers to serve defendant B late on the thirtieth
day. Obviously B is unlikely to rush to the courthouse
door before it closes to file his joinder of A's
removal petition; he is unlikely to even realize what
is happening to him before it is too late . . . This
cannot be what Congress had in mind.
Id. (quoting McKinney v. Bd. of Trustees of Md. Cmty. Coll.,
713 F. Supp. 185, 189 (W.D.N.C. 1989)). In other words, "[u]nder a
strict application of the first served controls rule, a plaintiff could
thwart a subsequently served defendants' right of removal by delaying
service of additional defendants until more than thirty days after
service of the previously served defendant." Bazzilla v. Belva Coal
Co., 939 F. Supp. 476, 479 (S.D.W.Va. 1996).