Removal — Written Consent of All Defendants

The Third Circuit has never embraced — or for that matter rejected — the majority position that each defendant must consent in writing (as opposed to orally) to removal of a state court action to federal court, according to the decision in Wal-Mart Stores, Inc. v. Elec. Ins. Co., 2007 U.S. Dist. LEXIS 3572 (D.N.J. Jan. 18, 2007). Nonetheless, that decision concluded that the requirement of a writing is the appropriate rule. The notice of removal before it include one defendant’s representation as to another’s consent and was, therefore, ineffective. Judge Robert Kugler did, however, afford the defendants 30 days to correct the deficiency because there was no definitive case law precluding the approach that they had taken. Of course, there is now.

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