United States District Court, S.D. New York
April 5, 2004.
ERIC SMITH, Plaintiff V. DAVERLYNN D. KINKEAD and ELRAC, INC., Defendants
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
In this motor vehicle accident lawsuit, plaintiff Eric Smith ("Smith")
has moved for an order, pursuant to 28 U.S.C. § 1447(c), remanding
this action to the Supreme Court of the State of New York. For the
reasons set forth, the motion is granted.
Smith commenced this action in New York state court by serving a
summons with notice upon the Secretary of State on August 12, 2003. The
summons identified the amount in controversy, the nature of the claim and
the fact that Smith resided in Bronx County. It did not identify the
residences of the two defendants, ELRAC, Inc. ("ELRAC") and Daverlynn D.
Upon receipt of the summons with notice, ELRAC served upon Smith a
notice of appearance and demand for complaint on October 22, 2003. Smith
then served his verified complaint on ELRAC on December 11, 2003. ELRAC
removed the case to this Court pursuant to 28 U.S.C. § 1441 on
December 29, 2003. As of this date, Kinkead has not made an appearance in
On January 20, 2004, Smith moved to remand the action to state court.
After submission of briefs, oral argument was heard on the motion on
March 24, 2004, at which time the motion was deemed fully submitted. Discussion
In his opening brief, Smith argues that ELRAC removed the case outside
of the 30 day removal period provided by 28 U.S.C. § 1446(b). Smith
argues that the time for removal dates from service of the notice with
summons, which in this case was on August 12, 2003. ELRAC contends that
the time for removal runs from service of the verified complaint, which
took place on December 11, 2003. Each party has cited case law in support
of its respective position.
In reply, Smith contests the date on which the 30-day removal period
begins. In addition, Smith argues that remand is warranted because not
all defendants have consented to the removal of this case. Because the
latter argument is dispositive of this motion, the issue of when the
30-day removal period begins will not be considered.
"Removal jurisdiction must be strictly construed, both because the
federal courts are courts of limited jurisdiction and because removal of
a case implicates significant federalism concerns." In re NASDAQ Market
Makers Antitrust Litigation, 929. F. Supp. 174, 178 (S.D.N.Y. 1996)
(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)
("Due regard for the rightful independence of state governments, which
should actuate federal courts, requires that they scrupulously confine
their own jurisdiction to the precise limits which the statute has defined.").
"The burden is on the removing party to prove that it has met the
requirements for removal." Codapro Corp. v. Wilson, 997 F. Supp. 322, 325
(E.D.N.Y. 1998) (quoting Avon Products, Inc. v. The A/J Partnership, 89
Civ. 3743/8032, 1990 WL 422416, at *1 (S.D.N.Y. March 1, 1990)); see also
NASDAQ Market Makers, 929 F. Supp. at 178. "There is nothing in the
removal statute that suggests that a district court has `discretion' to
overlook or excuse prescribed procedures." Id. (quoting Spillers v. C.R.
Tillman, 959 F. Supp. 364, 368 (S.D. Miss. 1997)).
The procedure for removal is outlined in 28 U.S.C. § 1446 (a) and
There are only a few requirements: (1) that the Notice
be signed in accordance with [Fed.R.Civ.P.] 11, which
requires the signature of at least one attorney of
record in his own name; (2) that it contains a short
and plain statement of the grounds for removal,
together, with a copy of all process, pleadings, and
orders served upon such defendants in such action; and
(3) that the notice be filed within thirty (30) days
of service of summons or complaint.
Payne v. Overhead Door Corp., 172 F. Supp.2d 475, 476-77 (S.D.N.Y.
2001). However, "the removal statute has consistently been interpreted to
require that all defendants consent to removal within the thirty day
period." Id. at 477 (citing Berrios v. Our Lady of Mercy Medical Center, 99 Civ. 21, 1999 WL 92269, at *2 (S.D.N.Y.
Feb. 19, 1999)). This requirement is known as the "rule of unanimity."
Id.; see also Allstate Ins. Co. v. Zhigun, 03 Civ. 10302, 2004 WL
187147, at *2 (Jan. 30, 2004); Ell v. S.E.T. Landscape Design, Inc.,
34 F. Supp.2d 188, 193 (S.D.N.Y. 1999) (noting "widespread agreement" to
the rule of unanimity "among the district courts, including those in the
Second Circuit") (citing cases); Codapro, 997 F. Supp. at 325. The "rule
of unanimity `advances the congressional purpose of giving deference to a
plaintiff's choice of a state forum and resolving doubts against removal
in favor of remand.'" Miller v. First Security Investments,
30 F. Supp.2d 347, 350 (E.D.N.Y. 1998) (quoting Ogletree v. Barnes,
851 F. Supp. 184, 187 (E.D. Pa. 1994)).
Consent has been interpreted by a "majority of courts to mean that each
defendant must submit written consent unambiguously agreeing to removal."
Payne, 172 F. Supp.2d at 477 (citing Berrios, 1999 WL 92269, at *2 n.1;
Ell, 34 F. Supp.2d at 194). Requiring written consent "serves the policy
of insuring the unanimity necessary for removal . . .[and] is consistent
with the notion that filing requirements are strictly construed and
enforced in favor of remand." Miller, 30 F. Supp.2d at 351 (quoting
Henderson v. Holmes, 920 F. Supp. 1184, 1187 n.2 (D. Kan. 1996)).
Further, "written consent to remove by each defendant prevents one
defendant from choosing a forum for all." Id. (citing Production Stamping
Co. v. Maryland Cas. Co., 829 F. Supp. 1074, 1076 (E.D. Wis. 1993)). No written consent has been received from Kinkead; in
fact, Kinkead has not filed anything in this litigation.
There are three recognized exceptions "to the general rule that all
defendants must join or consent to the petition for removal." Ell, 34 F.
Supp.2d at 194. Remand is inappropriate where:
(1) the non-joining defendants have not been served
with service of process at the time the removal
petition is filed; (2) the non-joining defendants
are merely nominal or formal parties; and (3) the
removed claim is a separate and independent claim
as defined by 28 U.S.C. § 1441(c).
Id. (citing Courtney v. Benedetto, 627 F. Supp. 523, 526 (M.D. La.
1986); 14C Charles A. Wright, Arthur P. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3731). None of the exceptions apply
in this case. Kinkead was served with service of process on August 12,
2003, and both Kinkead and ELRAC are alleged to have been negligent in
the ownership and operation of the motor vehicle during the incident
which resulted in injuries to Smith.
Applying these standards, ELRAC has failed to satisfy its burden of
demonstrating that all the served defendants consented to removal. While
ELRAC's notice of removal, which asserts the diverse citizenship of both
itself and Kinkead,
purports to act on behalf of all the served
defendants, none of the other defendants signed the
notice. Since then, [the other defendant has not]
filed anything in this Court, much less the separate "pleading"
manifesting [her] consent to satisfy the "rule of
Codapro, 997 F. Supp. at 326. Absent fulfillment of the requirements of
the rule of unanimity, remand of this case is appropriate.
For the reasons set forth above, Smith's motion to remand this case
pursuant to § 1447(c) is granted, and this action is remanded to
state court for further proceedings.
It is so ordered.
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