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Rule of Unanimity Does Not Apply to National Bank Removal under 12 U.S.C. § 632 — Any Defendant May Remove, Not Just the Bank — Caselaw Split

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From CI Int’l Fuels, Ltda. V. Helm Bank, S.A., 707 F. Supp. 2d 1351 (S.D. Fla. 2010):

On March 5, 2010, the Plaintiffs moved to remand this action to state court "on an issue of first impression in Florida and the Eleventh Circuit." (Mot. 1). According to the Plaintiffs, the removal is ineffective because Regions failed to comply with the "rule of unanimity," which "requires that all defendants consent to and join a notice of removal." Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir. 2008) (citing Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001)). The question presented — whether the rule of unanimity applies to actions removed under 12 U.S.C. § 632 — is indeed new in the Eleventh Circuit, and no circuit court of appeals, it appears, has addressed it. Most district courts that have addressed the issue have concluded for various reasons that the rule of unanimity does not apply; one district court, however, has concluded that it does. Compare New Mexico ex rel. Foy v. Vanderbilt Capital Advisors, LLC, No. CIV 09-0178 RB/MEH, 2009 U.S. Dist. LEXIS 105528, 2009 WL 3672921, at *3 (D.N.M. Apr. 13, 2009) (rule of unanimity does not apply), City of Stockton v. Bank of Am., N.A., No. C-08-4060 MMC, 2008 U.S. Dist. LEXIS 95189, 2008 WL 4911183, at *2-3 (N.D. Cal. Nov. 13, 2008) (same), and Wenzoski v. Citicorp, 480 F. Supp. 1056, 1058 (N.D. Cal. 1979) (same), with Ponce Fed. Bank, FSB v. Instituto Medico del Norte, Inc., 643 F. Supp. 424, 426 (D.P.R. 1986) (rule of unanimity does apply). ***

Section 632 of Title 12 of the U.S. Code, which is a "special removal statute," *** provides in part:

Notwithstanding any other provision of law, all suits of a civil nature at common law or in equity to which any corporation organized under the laws of the United States shall be a party, arising out of transactions involving international or foreign banking, or banking in a dependency or insular possession of the United States, or out of other international or foreign financial operations, either directly or through the agency, ownership, or control of branches or local institutions in dependencies or insular possessions of the United States or in foreign countries, shall be deemed to arise under the laws of the United States, and the district courts of the United States shall have original jurisdiction of all such suits; and any defendant in any such suit may, at any time before the trial thereof, remove such suits from a State court into the district court of the United States for the proper district by following the procedure for the removal of causes otherwise provided by law. (emphasis added).

The Plaintiffs' argument is straightforward. Although "any defendant" may remove, the defendant must do so "by following the procedure for the removal of causes otherwise provided by law." "[U]nder 28 U.S.C. § 1446(a), removal procedure requires that all defendants join in the removal petition." *** It follows, the Plaintiffs state, that the "procedure for the removal of causes otherwise provided by law" requires all defendants to join in the petition. And if there were any doubt, "all doubts about jurisdiction should be resolved in favor of remand to state court." *** The Plaintiffs' argument, not squarely addressed by the other district courts, is persuasive.

Yet two cases concerning kindred statutes suggest otherwise. The first is Franklin National Bank Securities Litigation v. Andersen, 532 F.2d 842 (1976), which addressed whether the rule of unanimity applied to 12 U.S.C. § 1819(4). Under that section the Federal Deposit Insurance Corporation (the "FDIC") may "remove any such action, suit, or proceeding from a State court to the United States district court for the district or division embracing the place where the same is pending by following any procedure for removal now or hereafter in effect." (emphasis added). According to the U.S. Court of Appeals for the Second Circuit, which concluded the FDIC could effect removal even as a realigned party plaintiff in state court,

the reference in § 1819(4) to "procedure for removal" is solely to the mechanical portions of 28 U.S.C. § 1446 which determine the "where," "when," and "how" of petitioning for removal. The question "who" can remove is resolved, insofar as the FDIC is concerned, within the language of § 1819 itself which provides for removal in "[a]ll suits . . . to which the [FDIC] shall be a party . . . ."

*** It followed that "the 'all defendants' limitation i[n] 28 U.S.C. § 1446(a) does not affect the right of the FDIC to remove under § 1819(4)." *** The result was not "unusual," the court observed, since "in other instances where special, rather than general, removal statutes control, the requirement that all defendants join in the petition for removal has been held inapplicable." Id. (citing Bradford v. Harding, 284 F.2d 307, 309-10 (2d Cir. 1960) (Friendly, J.) (holding that the rule of unanimity does not apply to 28 U.S.C. § 1442)).

The second case is In re Federal Savings & Loan Insurance Corp., 837 F.2d 432 (11th Cir. 1988), which concerned whether the rule of unanimity applied to 12U.S.C. § 1730(k)(1)(C). Under that section "[the Federal Savings and Loan Insurance Corporation (the 'FSLIC')] may . . . remove any such action, suit, or proceeding from a State court to the United States district court for the district and division embracing the place where the same is pending by following any procedure for removal now or hereafter in effect." (emphasis added). Based on the emphasized phrase, the district court remanded certain cases the FSLIC had removed because it had failed to obtain the consent of the defendants. The U.S. Court of Appeals for the Eleventh Circuit later vacated the order, observing that "[t]he procedures for removal to which section 1730(k)(1)(C) refers are those prescribed in 28 U.S.C. § 1446(a), (b), (d), (e) (1982), which specify how and when a petition for the removal of a case from state court to federal court is to be filed." 837 F.2d at 435***. "FSLIC followed these statutory procedures to the letter in these cases," the court stated, and "the district court was obliged to entertain them." ***

Under the framework of Andersen and In re Federal Savings & Loan Insurance Corp., the Court concludes that the rule of unanimity does not apply to 12 U.S.C. § 632. In both cases the courts analyzed special removal statutes that specifically named who could effect removal. Section 632 is a special removal statute as well, and it too specifically names who can effect removal: "any defendant." According to its plain meaning, which the Court must use, see CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1221 (11th Cir. 2001), the phrase "any defendant" means just that — any defendant in an action falling under section 632, see MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 56 (11th ed. 2003) (defining "any" as "one or some indiscriminately of whatever kind"); cf. THE CHICAGO MANUAL OF STYLE P 5.202, at 200 (15th ed. 2003) ("The two-word phrase any one is a more emphatic form of any, referring to a single person or thing in a group.").

[Footnote 5] The Court is unpersuaded by Plaintiffs' intimation that the case for remand is stronger because JPMorgan, the only federally chartered bank in this action, may not have joined in the notice of removal. *** Congress's choice of the phrase "any defendant" forecloses consideration of that argument. See Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442 (1917) ("It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms. Where the language is plain and admits of no more than one meaning, the duty of interpretation does not arise . . . ." (citations omitted)).

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