United States District Court, W.D. Kentucky, Bowling Green Division
JR. FOOD STORES, INC. PLAINTIFF
HARTLAND CONSTRUCTION GROUP, LLC; and PEOPLES BANK DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge.
matter is before the Court on Plaintiff's Motion to
Remand. (DN 7). This motion is ripe for adjudication. For the
reasons that follow, the motion is DENIED.
Jr. Food Stores, Inc. (“JFS”) filed its initial
complaint against Defendant Hartland Construction Group, LLC
(“Hartland”) and Defendant Peoples Bank
(collectively, the “Defendants”) in the Circuit
Court of Warren County, Kentucky, on May 16,
2019. (Compl. Ex. A, DN 1-1). Copies of the
civil summons and complaint were served on Hartland on May
24, 2019, and on Peoples on May 28, 2019. (Defs.' Resp.
Pl.'s Mot. Remand 1; Pl.'s Reply Mot. Remand 3). On
June 7, 2019, Hartland filed an answer to the Complaint in
Warren Circuit Court. (Defs.' Resp. Pl.'s Mot. Remand
19, 2019, Peoples removed the matter to this Court pursuant
to 28 U.S.C. § 1446 asserting diversity of citizenship
under 28 U.S.C. § 1332 and 28 U.S.C. § 1441.
(Notice Removal 2-3, DN 1). On June 24, 2019, Peoples filed
its answer to the Complaint. (Answer, DN 6). On July 2, 2019,
JFS moved to remand this case to state court because both
Defendants had not consented to removal. (Pl.'s Mot.
Remand 2, DN 7). In their joint response filed July 23, 2019,
both Defendants opposed remand and Hartland consented to
removal for the first time. (Defs.' Resp. Pl.'s Mot.
Remand 2). JFS replied. (Pl.'s Reply Mot. Remand).
primarily argues that Hartland's consent to removal was
not timely filed within 30 days of the Defendants'
receipt of service, such that there was no unanimous consent
to removal. (Pl.'s Mot. Remand 2). Defendants counter
that, even though Hartland did not consent to removal within
30 days of service, Hartland has now consented to removal to
satisfy 28 U.S.C. § 1446. (Defs.' Resp. Pl.'s
Mot. Remand 2). The question under consideration then is:
when a case is properly removed to federal court but not all
defendants consent within the 30-day statutory window, can
the non-consenting defendant cure this defect by consenting
after the fact?
defendant may remove “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction . . . .” 28 U.S.C. §
1441(a). Under 28 U.S.C. § 1446, “notice of
removal of a civil action or proceeding shall be filed within
30 days after the receipt by the defendant, through service
or otherwise, of a copy of the initial pleading . . .
.” 28 U.S.C. § 1446(b)(1). Moreover, “[w]hen
a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join
in or consent to the removal of the action.” 28 U.S.C.
§ 1446(b)(2)(A). Therefore, under Section 1446's
“unanimity requirement, ” all defendants must
obtain consent to removal before a case can be removed to
federal court. See Loftis v. United Parcel Serv.,
Inc., 342 F.3d 509, 516 (6th Cir. 2003) (“Failure
to obtain unanimous consent forecloses the opportunity for
removal under Section 1446.”).
present case, it is uncontested both that Hartland did not
consent to removal within 30 days of service and that
Hartland has now consented to removal. The Sixth Circuit has
previously allowed parties to correct procedural errors in
removal petitions. In Harper v. AutoAlliance
International, Inc., 392 F.3d 195 (6th Cir. 2004), the
notice of removal stated that the defendants had
“obtained concurrence” from a co-defendant to
remove, but the co-defendant had not signed the notice of
removal. Id. at 201. The Sixth Circuit held that the
pleaded concurrence of all defendants was sufficient to
satisfy the rule of unanimity and, relevant here, that
“the fact that [the co-defendant] subsequently opposed
[the] motion to remand cured any purported defect in the
removal petition.” Id. at 202 (emphasis
added). Admittedly, Harper dealt with a situation in which
there was at least some indication in the notice of removal
of the co-defendant's consent, which is not the case
under the present facts. Even so, other courts addressing the
present issue have concluded that remand was not warranted.
In Stone v. Bank of New York Mellon, 609 Fed.Appx.
979 (11th Cir. 2015) (per curium) (unpublished), one
defendant did not join the notice of removal or otherwise
consent to removal within the 30-day statutory window, but
the defendant did later oppose the plaintiff's motion to
remand. Id. at 981. The Eleventh Circuit concluded
that even though the defendant “did not join the notice
of removal, it did oppose remand, and therefore the district
court did not err by refusing to remand for a technical
defect related to the unanimity rule.” Id.;
see also Esposito v. Home Depot U.S.A., Inc., 590
F.3d 72, 77 (1st Cir. 2009) (holding that a
co-defendant's failure to timely consent to removal
“was subsequently cured when [the co-defendant] opposed
[the plaintiff's] remand motion, thereby clearly
communicating its desire to be in federal court.”
(citation omitted)); Gonzalez v. TCR Sports Broad.
Holding, LLP, No. 18-CV-20048, 2018 WL 4292018, at *2
(S.D. Fla. Sept. 10, 2018) (same); Goss v. Aetna,
Inc., 360 F.Supp.3d 1364, 1370 (N.D.Ga. 2019) (holding
that a notice of consent to removal that occurred after the
30-day statutory window had passed “cured any
procedural defect related to the unanimity
requirement.”); Vestagen Protective Techs., Inc. v.
Beyer, No. 6:17-CV-494, 2017 WL 7355311, at *2 (M.D.
Fla. July 5, 2017) (same).
case, Hartland did not explicitly consent to removal, but
Hartland's opposition to remand (jointly with
People's Bank) clearly communicates Hartland's
consent and “desire to be in federal court.”
Moreover, even though Hartland failed to comply with the
30-day statutory window for unanimous consent, this is merely
a “technical defect related to the unanimity
rule” that does not warrant remand.
Court is mindful that “the statutes conferring removal
jurisdiction are to be construed strictly because removal
jurisdiction encroaches on a state court's
jurisdiction.” Brierly v. Alusuisse Flexible
Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999)
(citing Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100, 108-09 (1941)). Nevertheless, the pertinent case
law demonstrates a trend towards excusing technicalities of
removal when the pertinent defendants have clearly indicated
their consent to federal jurisdiction. Moreover, this
decision minimally encroaches on the jurisdiction of the
state court because this action could have properly been
brought in federal court to begin with and all Defendants now
express a desire to so remain.
foregoing reasons, IT IS HEREBY ORDERED that Plaintiff s