Removal — Is It Sufficient If One Defendant’s Timely Removal Notice States That All Others Consent? — Circuit Split — Rule 11 As Reason to Permit Removal on This Basis — Failure to Object ≠ Consent

Griffioen v. Cedar Rapids & Ioaw City Rwy., 2015 U.S. App. LEXIS 7528 (8th Cir. May 7, 2015):

I.

The Griffioen Group brought a putative class action in Iowa state court against Union Pacific, Cedar Rapids and Iowa City Railway Co. and Alliant Energy Corp. (collectively, CRANDIC), and ten additional defendants (collectively, the Stickle Defendants),alleging negligence, strict liability for abnormally dangerous or ultra-hazardous activity, and strict liability based on [*2]  violations of Iowa Code sections 468.148 and 327F.2. They allege that the Rail Group's failure to properly build and maintain railway bridges over the Cedar River caused or exacerbated the 2008 flood. They also allege that the decision of some members of the Rail Group to attempt to stabilize the bridges by weighing them down with railcars filled with ballast caused or exacerbated the flooding of their properties, either because the bridges collapsed and effectively dammed the river and blocked drainage, or because the railcars on bridges that did not collapse blocked the free flow of the river and diverted water into low-lying areas.

CRANDIC was served with the complaint on June 7, 2013. The Stickle Defendants were served on June 8, 2013, and Union Pacific was served on June 10, 2013. On July 2, 2013, Union Pacific filed a Notice of Removal that asserted federal-question jurisdiction arising from the complete preemption created by the Federal [*3]  Railway Safety Act (FRSA). The notice stated, "Undersigned counsel . . . have contacted attorneys for the other named co-defendants in this matter, and there is no objection to removal." Accompanying the affidavit was a local rule certification that stated, "The co-defendants have given their consent to the removal of this action." On July 10, 2013, CRANDIC filed its notice of consent to removal. The Stickle Defendants, however, did not file a notice of consent to removal until July 31, 2013-more than 30 days after Union Pacific was served with the complaint. By that time, the Griffioen Group had filed a motion to remand, arguing that the FRSA does not completely preempt their claims and that removal was improper because not all defendants had timely consented. CRANDIC, the Stickle Defendants, and Union Pacific all filed briefs in opposition to the motion to remand, arguing that removal was proper. The Stickle Defendants' brief in opposition stated that their counsel had told Union Pacific that they had "no objection to removal." In their briefs in opposition, the Rail Group abandoned the FRSA argument, contending instead that the Interstate Commerce Commission Termination Act (ICCTA), [*4]  49 U.S.C. §§ 701-727, 10101-16106, completely preempted the Griffioen Group's state-law claims, thereby giving the federal court jurisdiction. Union Pacific also filed a motion for judgment on the pleadings.

The district court granted Union Pacific's motion for judgment on the pleadings and denied the Griffioen Group's motion to remand, concluding that there was timely consent to removal and that the court had subject-matter jurisdiction because the ICCTA completely preempted the state-law claims. It ordered that the case be transferred to the Surface Transportation Board (STB), the agency tasked with administering the ICCTA.

II.

We first consider whether consent to removal was timely. Griffioen Group contends that the Stickle Defendants' consent was invalid and that under 28 U.S.C. § 1446, each co-defendant was required either to sign the notice of removal or to file for itself a written indication of its consent within 30 days of the date of service upon the removing defendant, neither of which the Stickle Defendants did.

The interpretation of § 1446 is a question of law that we review de novo. See Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 755 (8th Cir. 2001). The first paragraph of § 1446(b) requires that a defendant's notice of removal "be filed within 30 days after the receipt by the defendant, through [*5]  service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b)(1). The second paragraph, as amended in 2011, requires that "all defendants who have been properly joined and served must join in or consent to the removal of the action" and that 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." Id. § 1446(b)(2)(A)-(B).

The Supreme Court long ago established, under a predecessor removal statute, that removal based on a federal question requires the unanimous consent of all defendants. See Chi., Rock Island, & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248 (1900). That rule persists to this day and has been codified in the 2011 amendments to § 1446. See Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. 112-63, § 103, 125 Stat. 758, 760 (codified as amended at 28 U.S.C. § 1446). Because neither the Supreme Court nor Congress has clarified what form consent must take, however, the circuits have split on this issue. The Fourth, Sixth, and Ninth Circuits have held that a statement in one defendant's timely removal notice that its codefendants consent is sufficient. Mayo v. Bd. of Educ., 713 F.3d 735, 742 (4th Cir. 2013); Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009); Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195, 201-02 (6th Cir. 2004). The Seventh and Fifth Circuits, on the other hand, have suggested that [*6]  in most situations a defendant may not give notice of consent on another defendant's behalf. See Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994), abrogated on other grounds by Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999); Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988) (allowing such consent only by the defendant itself or by another with authority to formally act on the defendant's behalf).

We have not directly addressed the question whether a representation in a removing defendant's notice stating that its codefendants consent can satisfy § 1446's unanimity requirement. In Pritchett v. Cottrell, Inc., we set forth the basic rule that in order to meet the consent requirement, there must "'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." 512 F.3d 1057, 1062 (8th Cir. 2008) (quoting Getty Oil, 841 F.2d at 1262 n.11). Pritchett thus left open the possibility that the unanimity requirement could be met when the removing defendant gives notice of its codefendants' consent, presuming, of course, that the removing defendant has the authority to indicate consent on their behalf, and that its notice of removal is timely.2

2. We disagree with the Fourth and Ninth Circuits' characterizations of Pritchett to the extent that they suggest otherwise. See Mayo , 713 F.3d at 741; Proctor , 584 F.3d at 1224- 25. Pritchett quoted Getty Oil, but did not necessarily adopt the Fifth Circuit's rule in its entirety. At any rate, Getty Oil also left open the possibility that a defendant with proper authorization could consent on its codefendants' behalf; in Getty Oil, however, that authorization had not been established. See Getty Oil, 841 F.2d at 1262 n.11. 

It is true that we have specifically advised non-removing defendants who wish to consent to removal to "either sign the [*7]  notice of removal or file a timely and unequivocal consent." Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 933 (8th Cir. 2012). Nevertheless, we have recognized that the written indication of consent can come in various forms, and we have been "disinclined to apply the unanimity requirement in a 'hypertechnical and unrealistic manner.'" Id. (quoting Bradley v. Md. Cas. Co., 382 F.2d 415, 419 (8th Cir. 1967)). So also here, we are once again disinclined to adopt a hard-line requirement, particularly in light of the new language of § 1446. The 2011 amendments to § 1446 that codified the rule of unanimity did not describe the form of or time frame for consent when multiple defendants are involved. By comparison, § 1446 as amended lays out in detail the procedures for the notice of removal, including the form of the notice and the time frame for each defendant to file it in a multiple-defendant [*8]  action. Congress could have defined with equal specificity the form of or time for consent but chose not to do so. Its failure to do so dissuades us from adopting a rule that places form over substance.

Furthermore, we believe that policy considerations support the validity of the consent in the circumstances of this case. The potential for Rule 11 sanctions and a codefendant's opportunity to alert the court to any falsities in the removing defendant's notice serve as safeguards to prevent removing defendants from making false representations of unanimous consent and forcing codefendants into a federal forum against their will. See Mayo, 713 F.3d at 742 (explaining that codefendants can bring misrepresentations to the court's attention, leading to Rule 11 sanctions); Proctor, 584 F.3d at 1225 (stating that the availability of sanctions and objection mitigate policy concerns); see also Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 75 (1st Cir. 2009) (noting that the rule of unanimity prevents one defendant from imposing its choice of forum on unwilling codefendants). And although there may be instances in which these safeguards alone are not sufficient, as long as the removing defendant's codefendant itself later files an indication of its consent, any potential concern that the codefendant has not authorized [*9]  or manifested its binding consent to removal is mitigated. The Stickle Defendants did so here.

The Griffioen Group argues that the words "no objection to removal" are insufficient to indicate actual consent. See, e.g., Frankston v. Denniston, 376 F. Supp. 2d 35, 41 (D. Mass. 2005) ("[A] failure to object is different than affirmatively giving consent."). The local rule certification accompanying Union Pacific's notice of removal, however, stated that "[t]he co-defendants have given their consent to the removal of this action." If there is a difference between "no objection" and consent, the local rule certification—also subject to Rule 11—resolved the issue. And even if the Stickle Defendants' statement to Union Pacific that they had "no objection" would be insufficient to support Union Pacific's authority to represent their "consent," they later ratified Union Pacific's notice of consent on their behalf. See Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002) (finding a notice of consent valid, despite not being properly authorized at the time, when the defendant ratified it after the fact).

We therefore hold that a defendant's timely removal notice indicating consent on behalf of a codefendant, signed and certified pursuant to Rule 11 and followed by the filing of a notice of consent from the codefendant itself, sufficiently [*10]  establishes that codefendant's consent to removal. Thus, the Stickle Defendants' consent in this case was sufficient.

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