Second Circuit: Failure to Obtain Consent of All Served Defendants to Removal Cannot be Cured After Deadline for Removal

October 8, 2021

by: Colin E. Flora

     In prior discussions, we’ve touched on the topics of federal jurisdiction and on removing putative class actions from state court to federal court. We have not, however, dedicated much time to talking about the process of removal in general. Last week, the Second Circuit handed down its decision in that provides us such an opportunity. 

     Before we delve into Taylor v. Medtronic, Inc., we need to start with a brief explanation of what removal even is. As you may have gleaned from our prior discussions on federal jurisdiction, there are scenarios in which a case could as equally be pursued in a state court as it could in a federal court. When a case could be filed in either state or federal court, the question of where the case is initiated is a matter for the plaintiff to decide. But, when the case could have been filed in federal court, a defendant may generally opt to have the case removed from the state court and continued in federal court, though there are exceptions. Whether a case may be removed is generally governed by 28 U.S.C. § 1441. The procedures for doing so are embodied in 28 U.S.C. § 1446.

     If there is just one defendant, then effectuating removal can be fairly simple. But, if there are more than one defendant, things get a bit more complicated. As the Second Circuit explained:

Section 1441(a) permits a defendant to remove a case from state court to federal court, so long as certain requirements are satisfied. A notice of removal must be signed by at least one attorney of record in accordance with Rule 11; contain a short and plain statement of the basis for removal; and include a copy of all process, pleadings, and orders served upon the defendants in the action. More importantly for our case, the notice of removal “shall be filed within 30 days after the receipt by the defendant” of the initial pleading or summons, “whichever period is shorter.” And within that thirty-day window, “all defendants who have been properly joined and served must join in or consent to the removal of the action” the so-called rule of unanimity. While not codified until 2011, common law long required all defendants to consent to removal.

“The unanimity requirement serves the interests of plaintiffs, defendants and the courts,” because:

It benefits plaintiffs by preventing defendants from splitting the litigation, forcing the plaintiff to pursue the case in two separate forums. It benefits defendants by precluding one defendant from imposing its forum choice on codefendants. And it helps courts by preventing needless duplication of litigation.

     You may now be sensing the issue that arose in Taylor. There, each of five defendants was served notice of the state-court action. Four of the five defendants timely consented to removal. The fifth, apparently favoring dismissal, provided its consent only after the thirty-day window had closed. Thus, the question was “whether the removal statute allows a defendant to consent to removal after the thirty-day deadline for removal lapses.” The Second Circuit answered, “It does not. Where, as here, a properly served defendant fails to provide notice of consent to removal within the thirty-day statutory period, the defendant cannot cure that failure by providing late consent.”

     The Second Circuit found that interpretation the only one consistent with the language of Section 1446(b)(2)(A) (“When 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.”) and Section 1446(b)(2)(B) (“Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.”). In the court’s esteem, “[t]o read the removal statute as permitting late consent would not only overlook the statute’s clear language, but would also undermine the ‘rapid determination of the proper forum,’ which [the Second Circuit has] recognized as a goal of the removal procedures.”

     Importantly, the Second Circuit’s conclusion wholly removes any discretion from the district court “to allow a party to cure a failure to meet the statute’s requirements once the thirty-day period for removal lapses.” Put simply, if even one properly served defendant fails to timely consent, removal is improper.

     While the Taylor decision is currently binding only in the Second Circuit, it will be interesting to see if other circuits follow the Second Circuit’s lead in adhering to the clear language of the statute.

     Join us again next time for further discussion of developments in the law.

Sources

*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, client or otherwise, should act or refrain from acting on the basis of any content included herein without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.

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