Removal: Motion to Dismiss May Serve as Consent — Reliance on Co-Defendants’ Brief May Suffice — Defect in Consent Curable within 30 Days of Filing It

Christiansen v. West Branch Community School Dist., 2011 U.S. Dist. LEXIS 32621 (N.D. Iowa Mar. 28, 2011):

On September 17, 2010, Plaintiff filed a Petition at Law ("Complaint")*** in the Iowa District Court for Cedar County***. On September 20, 2010, Plaintiff filed an Amended Petition at Law ("Amended Complaint")***.

On October 19, 2010 the West Branch Defendants removed the action to this court on the basis of federal question jurisdiction. On October 27, 2010, the West Branch Defendants filed the West Branch Motion. On November 5, 2010, the Kober Defendants filed the Kober Motion. On November 12, 2010, Plaintiff filed the Motion to Remand.***

On November 16, 2010, the Kober Defendants filed a Consent to Removal***.

Plaintiff is a licensed professional educator in the State of Iowa. Since approximately 2003, the West Branch Community School District employed Plaintiff in various capacities, including teacher, coach and bus driver. On or about September 19, 2008, after middle school football practice, several students engaged in a water fight on a school bus that Plaintiff was preparing to drive. One student, Henry Maxwell Kober, was disruptive and made an offensive gesture toward Plaintiff. Plaintiff asked Henry to leave the bus, but Henry did not leave. After Plaintiff approached him, Henry "ultimately left the bus and then accused [Plaintiff] of improper physical contact." Amended Complaint at ¶ 11. Plaintiff maintains that the accusation is untrue.

Henry told his parents, Christopher and Teresa Kober, and other unnamed individuals, that Plaintiff assaulted him. *** After a hearing, the West Branch Community School District terminated Plaintiff's employment contract. Plaintiff did not appeal his termination. ***

In the Motion to Remand, Plaintiff argues that the West Branch Defendants' Notice of Removal (docket no. 2) is defective because the Kober Defendants did not join in the Notice of Removal and the time for doing so expired. After Plaintiff filed the Motion to Remand, the Kober Defendants filed the Consent to Removal, in which they state:

[The Kober Defendants] hereby consent to the removal of the above-entitled matter to the U.S. District Court for the Northern District of Iowa. Said Defendants previously filed a Motion to Dismiss Plaintiff's Complaint in this action, which they believed constituted a consent to the removal. However, in the event that it did not, [the Kober Defendants] are filing this Consent to reflect their desire that it be removed.

***

ii. Form of consent

"Although all courts agree generally on the requirement of unanimity, the circuits are split as to exactly what form a co-defendant's joinder must take." 16 James Wm. Moore et al., Moore's Federal Practice § 107.11[1][c] (3d ed. 2010). The Eighth Circuit Court of Appeals has acknowledged that, "[w]hile the failure of one defendant to consent renders the removal defective, each defendant need not necessarily sign the notice of removal." Pritchett, 512 F.3d at 1062 (citing Getty Oil, 841 F.2d at 1262 n.11). "There must, however, 'be some timely filed written indication from each served defendant,' or from some person with authority to act on the defendant's behalf, indicating that the defendant 'has actually consented to the removal." Id. (quoting Getty Oil, 841 F.2d at 1262 n.11).

The party opposing remand has the burden to establish unanimity. *** "The defect in the removal process resulting from a failure of unanimity is not considered to be a jurisdictional defect, and unless a party moves to remand based on this defect, the defect is waived and the action may proceed in federal court." Esposito, 590 F.3d at 75; see also Nolan v. Prime Tanning Co., Inc., 871 F.2d 76, 78 (8th Cir. 1989) (same). Further, although removal statutes are to be strictly construed, they should not be interpreted in a "hypertechnical and unrealistic manner[.]" Bradley v. Maryland Casualty Co., 382 F.2d 415, 419 (8th Cir. 1967).

It appears that the question now before the court — whether the Kober Defendants' Motion to Dismiss may operate as a consent to removal — is a matter of first impression in this court. Likewise, it appears that the Eighth Circuit Court of Appeals has not decided this precise issue. However, several other federal courts have considered this question. Some courts have refused to treat an answer or a motion to dismiss as sufficient to convey a defendant's unambiguous consent to removal. See, e.g., Peace v. Estate of Sorensen, No. CV08-2880, 2008 WL 2676367, at *3 (C.D. Cal. June 30, 2008); Gribler v. Wesblat, No. 07 Civ. 11436, 2008 WL 563469, at *2 (S.D.N.Y. Feb. 25, 2008); Henrich v. Falls, No. Civ.A. 05-1488, 2006 WL 335635, at *2 (E.D. Va. Feb. 13, 2006); Local Union No. 172 v. P.J. Dick, Inc., 253 F. Supp. 2d 1022, 1025 (S.D. Ohio 2003); Unicom Sys., Inc. v. Nat'l Louis Univ., 262 F. Supp. 2d 638, 643 (E.D. Va. 2003); Landman v. Borough of Bristol, 896 F.Supp. 406, 409 (E.D. Pa.1995). Many of these courts have noted that the answer or motion to dismiss was insufficient to provide notice of consent to removal because it was filed beyond the 30 day removal period or failed to discuss the removal. See, e.g., Wolfenden v. Long, No. 5:09-CV-00536, 2010 WL 2998804, at *4 (E.D.N.C. July 26, 2010); Gribler, 2008 WL 563469, at *2; Henrich, 2006 WL 335635, at *2.

However, other courts have indicated that, in certain circumstances, a defendant's answer or motion to dismiss should be treated as notice that the defendant has joined in the removal. See, e.g., Esposito, 590 F.3d at 75-77; Harper v. AutoAliance Int'l, Inc., 392 F.3d 195, 202 (6th Cir. 2004); Noel v. Laclede Gas Co., 612 F. Supp. 2d 1051, 1055-57 (E.D. Mo. 2009); Brauser v. Sunair Servs. Corp., No. 09-80438-CIV, 2009 WL 1939732, at *1 (S.D. Fla. July 6, 2009); Mitchell v. Paws Up Ranch, LLC, 597 F. Supp. 2d 1132, 1141-42 (D. Mon. 2009); Gonzales v. Am. Home Prods. Corp., 223 F. Supp. 2d 803, 806 n.1 (S.D. Tex. 2002); Glover v. W.R. Grace & Co., Inc., 773 F. Supp. 964, 965 (E.D. Tex. 1991); Hernandez v. Six Flags Magic Mountain, Inc., 688 F. Supp. 560, 562-63 (C.D.Cal.1988); see also Hunter v. Canadian Pac. Ry. Ltd., No. 07-3314, 2007 WL 4118936, at *2 n.3 (D. Minn. Nov. 16, 2007) (finding alleged unanimity defect unavailing where co-defendant filed an answer in federal court); Morales v. Safeway Stores, Inc., No. C-01-3934, 2002 WL 202367, at *2 (N.D. Cal. Jan. 30, 2002) ("In some situations, filing an answer to a complaint within 30 days of removal may serve as a joinder and thereby cure the procedural defect."). ***

In light of the foregoing, the court concludes that, under the circumstances presented here, the Kober Motion gave sufficient notice of the Kober Defendants' intent to join in the West Branch Defendants' removal of the case to federal court. The facts make clear that, on October 13, 2010, the Kober Defendants were each served with notice of the suit which Plaintiff filed in the Iowa District Court for Cedar County. On October 19, 2010, the West Branch Defendants filed a Notice of Removal. On October 27, 2010, the West Branch Defendants filed the West Branch Motion. On November 5, 2010, within the 30 day removal period, the Kober Defendants filed the Kober Motion. In their Brief in Support of the Kober Motion, the Kober Defendants expressed their intent to "rely upon the Brief of [the West Branch Defendants]." Brief in Support of the Kober Motion (docket no. 7-1) at 1. By relying upon all of the arguments presented by the West Branch Defendants in their Brief, the Kober Defendants reasserted the following statement:

Plaintiff alleges a violation of 42 U.S.C. § 1983 in his [Amended Complaint], making removal pursuant to 28 U.S.C. § 1441(a) appropriate under federal question jurisdiction.

Brief in Support of the West Branch Motion (docket no. 6-1) at 2. This is undoubtedly an unambiguous expression of the Kober Defendants' intent to join in the West Branch Defendants' Notice of Removal. Thus, the court concludes that the Kober Defendants timely filed some "'written indication'" "that [they] 'ha[d] actually consented' to the removal." Pritchett, 512 F.3d at 1062 (quoting Getty Oil, 841 F.2d at 1262 n.11).

Furthermore, on November 16, 2010, only four days beyond the 30 day removal period, and two business days after Plaintiff filed the Motion to Remand, the Kober Defendants filed the Consent to Removal. In the Consent to Removal, the Kober Defendants make clear that they intended to join in the removal and believed their Motion to Dismiss constituted such consent. Many courts have concluded that where a defendant timely seeks to join in a removal, but the defendant's notice of removal is defective, the defendant may cure the defect after the 30 day removal period. See, e.g., Esposito, 590 F.3d at 77 ("[E]ven assuming that [defendant's] answer failed to satisfy the unanimity requirement, resulting in a technical defect in the removal process, the defect was subsequently cured when [defendant] opposed [plaintiff's] remand motion, thereby clearly communicating its desire to be in federal court."); Harper, 392 F.3d at 202 (same); Carnchini v. Bank of America, N.A., No. 4:10-CV-672, 2010 WL 379171 (W.D. Mo. Sept. 22, 2010); Tresco, Inc. v. Continental Casualty Co., No. CIV 10-0390, 2010 WL 2977606, at *6-8 (D.N.M. July 2, 2010) (listing cases). Thus, the court concludes that, to the extent the Kober Motion was defective as a consent to removal, the Kober Defendants cured the defect by filing the Consent to Removal. Under the circumstances presented in this case, the court finds that the underlying purposes of the unanimity requirement would not be served by remand. See Esposito, 590 F.3d 72 at 75-77. The court shall, therefore, deny the Motion to Remand insofar as it is based upon a defect in the notice of removal.

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