Removal — Is It Sufficient for One Defendant, in a Timely Notice of Removal, to Recite That All Co-Defendants Consent to Removal or Must Each of Them Separately Consent in Writing? — Circuit Split

Baldy v. First Niagara Pavilion, CCRL, LLC, 2015 U.S. Dist. LEXIS 162123 (W.D. Pa. Dec. 3, 2015):

B. The Circuit Split

District [*13]  courts within the Third Circuit have recognized that "[u]nanimity may be expressed by defendants either jointly filing the notice of removal or consenting to the removal by separate filing." McGuire, 2013 WL 5272767, at *2 (citing Moore v. Phila., Civ. Action No. 12-3823, 2012 WL 3731818, at *3 (E.D. Pa. Aug. 29, 2012); Weinrach v. White Metal Rolling and Stamping Corp., Civ. Action No. 98-3293, 1999 WL 46627, at *1 (E.D. Pa. Jan. 6, 1999)). Here, defendants do not argue that the nonremoving defendants filed a separate notice of their consent to removal; rather, they argue their consent was given to counsel for the removing defendants and was properly communicated to the court via the removing defendants' notice of removal, which was signed only by counsel for the removing defendants.

There is a split among the courts of appeals about whether a statement in a defendant's timely notice of removal that its codefendant consents to removal is sufficient to communicate to the court the consent of the codefendant. The court in A.R., the most recent district court decision on this issue within the Third Circuit, explained the circuit split as follows:

   The Second, Fifth and Seventh Circuits, have found that a defendant may not verify consent to removal on another codefendant's behalf. Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir. 2012) (finding that codefendants satisfied the unanimity requirement of independently expressing consent to removal by submitting letters to the district court within [*14]  30-day removal period); Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir. 1994), abrogated on other grounds by Murphy Bros. v. Michetti PipeStringing, Inc., 526 U.S. 344 (1999) (explaining that the removal statute's directive that "all defendants who have been properly joined and served must join in or consent to the removal of the action" means that each codefendant must submit their consent in writing); Getty Oil Corp. v. Ins.Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988) (noting unanimity requires "some timely filed written indication from each served defendant or from some person or entity purporting to formally act on its behalf in this respect and to have the authority to do so, that it has actually consented to such action").1 Under this view, it is not enough for the removing party to simply state that the codefendants consent to or do not oppose removal because this verification cannot legally bind the allegedly consenting codefendant. Roe, 38 F.3d 298 at 301; Getty Oil, 841 F.2d at 1262 n.11.

The Fourth, Sixth, Eighth and Ninth Circuits, on the other hand, have held that a statement in one defendant's timely notice of removal that its codefendants consent to removal is sufficient. Griffioen v. Cedar Rapids& Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015) (notice of removal signed and filed by attorney for one defendant and representing unambiguously that other defendants consented to removal satisfies the removal statute's unanimous consent requirement); Mayo v. Bd. of Educ., 713 F.3d 735, 742 (4th Cir. 2013) (same); Proctor v. VishayIntertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009) (same); Harperv. AutoAlliance Int'l, Inc., 392 F.3d 195, 201-02 (6th Cir. 2004) (same). The [*15]  Fourth, Sixth, Eighth and Ninth Circuits believe 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."Griffioen, 785 F.3d at 1187-88; see also Mayo, 713 F.3d at 724 (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 minimize policy concerns).

A.R., 2015 WL 6951872, at *3.

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