Opinion
03-CV-0750E(F)
February 11, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
On June 24, 2002 the Owczareks filed suit in the New York State Supreme Court, County of Erie, for personal injuries/loss of consortium stemming from an alleged injury suffered by Gregory D. Owczarek at a construction site allegedly owned and operated by The Austin Company ("Austin") and OBH, Inc. d/b/a the Buffalo News ("OBH"). On September 4, 2003 the Owczareks filed an Amended Complaint that also named Cleveland Wrecking Company ("Cleveland Wrecking") as a defendant. Cleveland Wrecking removed this action on the basis of diversity on October 7. The Owczareks filed a motion to remand on October 28 pursuant to 28 U.S.C. § 1446(b). For the reasons set forth below, the Owczareks' motion for remand will be granted.
The Owczareks contend that Cleveland Wrecking's Notice of Removal is deficient because, pursuant to 28 U.S.C. § 1446(b), it was untimely — it was made more than one year after the action was filed in state court. Inasmuch as this action will be remanded on other grounds, this Court need not address the parties' arguments.
Interpretation of section 1446(b)'s one year limitation has resulted in considerable disagreement amongst federal courts — as is demonstrated by the cases cited in the parties' briefs.
This Court must "construe the removal statute narrowly, resolving any doubts against removability." Moreover, the removing party must demonstrate a jurisdictional basis for removal as well as "the necessary compliance with the statutory removal requirements." Accordingly, "[s]ubsection 1447(c) authorizes a remand on the basis of any defect in removal procedure or because the district court lacks subject matter jurisdiction."
See Somlyo v. J. Lu-Rob Enters., 932 F.2d 1043, 1045-1046 (2d Cir. 1991) ("In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.") (citing Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941)); see also Wilds v. United Parcel Serv., Inc., 262 F. Supp.2d 163, 176 (S.D.N.Y. 2003) ("The defendant's right to remove and the plaintiff's right to choose the forum are not equal, and uncertainties are resolved in favor of remand.") (citation omitted).
Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 (E.D.N.Y. 1998).
LaFarge Coppee v. Venezolana de Cementos, 31 F.3d 70, 72 (2d Cir. 1994); see also Codapro, supra note 4, at 325 ("There is nothing in the removal statute that suggests that a district court has `discretion' to overlook or excuse prescribed procedures.") (citation omitted).
Although not expressly required by statute, a majority of federal courts have interpreted section 1446 as requiring all served defendants to consent to removal within the statutory thirty day period — this rule is known as the "rule of unanimity." Each defendant must provide the court with written consent for removal — as opposed to providing such to a co-defendant. Indeed, a majority of courts have held that "a representation by one defendant in the notice of removal that all defendants have consented [is] insufficient, requiring instead that each defendant independently notify the court of its consent."
Codapro, supra note 4, at 325 ("The rule of unanimity `advances the congressional purpose of giving deference to a plaintiff's choice of a state forum and of resolving doubts against removal and in favor of remand.'"); see also Franck v. Sullivan (In re Worldcom, Inc. Sec. Litig.) 2003 WL 22383090, at *1 (S.D.N.Y. 2003) (citing Bradford v. Hording, 284 F.2d 307 (2d Cir. 1960) for the proposition that it "is well established that the unanimous consent by defendants to a removal is necessary to remove an action under the general removal statute"); Town of Moreau v. New York State Dep't Envtl. Conserv., 1997 WL 243258, at *2 (N.D.N.Y. 1997) (citing Bradford). There are several exceptions to the rule of unanimity, none of which is applicable here. See Ell v. S.E.T. Landscape Design, Inc., 34 F. Supp.2d 188, 194 (S.D.N.Y. 1999) (noting that exceptions to the rule of unanimity exist where the non-joining defendants either (1) have not been served or (2) are nominal or formal parties, or (3) where the "removed claim is a separate and independent claim").
Codapro, supra note 4, at 325-326 (granting plaintiff's remand motion because the removing defendant annexed as an exhibit letters it received from its co-defendants consenting to removal — which the court found to be insufficient because, inter alia, such letters were directed to the co-defendant rather than the court); see also Ricciardi v. Kone, Inc., 215 F.R.D. 455, 458 (E.D.N.Y. 2003) ("The rule of unanimity requires that all named defendants file with [the] court some form of unambiguous written evidence of consent to removal."); Payne v. Overhead Door Corp., 172 F. Supp.2d 475, 477 (S.D.N.Y. 2001) ("The majority of courts interpret `consent' to mean that each defendant must submit written consent unambiguously agreeing to removal."); Town of Moreau, supra note 6, at *5 (discussing policy reasons for requiring each defendant to supply written consent for removal to the court — as opposed to a communication directed to a co-defendant).
Berriosv. Our Lady of Mercy Med. Ctr., 1999 WL 92269, at *2 n. 1 (S.D.N.Y. 1999); id. at *2 ("[C]onsent communicated among the defendants is insufficient; each defendant must notify the Court of its consent prior to the expiration of the thirty-day period for the removal petition to be timely.").
Cleveland Wrecking's Notice of Removal failed to satisfy the rule of unanimity. Although such Notice of Removal indicates that all defendants consent to removal, it failed to attach thereto anything in writing from the purportedly consenting parties. Accordingly, Cleveland Wrecking's Notice of Removal is defective and this case must be remanded.
See note 7, supra; see also Landman v. Borough of Bristol, 896 F. Supp. 406, 409 (E.D. Pa. 1995) ("In its June 1, 1995 removal petition, Amtrak simply asserted that co-defendant Bristol agreed to the removal. The petition did not include any documentation signed by Bristol or its representative to confirm Amtrak's claim. Unfortunately for both, one defendant's attempt to speak on behalf of another will not suffice."); Fellhauer v. City of Geneva, 673 F. Supp. 1445, 1448 (N.D. Ill. 1987) ("The removal statute requires that all defendants communicate their consent to removal to the court — not to one another.").
The fact that all three defendants are represented by the same law firm is of no consequence — each defendant must submit to this Court unambiguous written consent for removal. Inasmuch as the Notice of Removal was only signed on behalf of Cleveland Wrecking, there is no evidence that Austin or OBH consented to removal.
Accordingly, it is hereby ORDERED that plaintiffs' motion for remand is granted and that the Clerk of this Court shall remand this action to the New York State Supreme Court, County of Erie.