United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs’ motion to
remand this action to the Missouri state court from which it
was removed. Defendant Sentry Insurancehas responded in
opposition. None of the three other defendants has responded
to the motion, and the time allowed for doing so has expired.
Jeff Henry and Kelli Henry initiated this action in the
Circuit Court of Jefferson County, Missouri on March 11,
2016. Plaintiffs are citizens of Missouri. Sentry is
incorporated in Wisconsin and maintains its principal place
of business there. According to Sentry’s notice of
removal, defendant Nationwide Insurance is incorporated in
Ohio and maintains its principal place of business in that
state. The notice of removal also alleges defendant Helitech
Waterproofing & Foundation Repair maintains its principal
place of business in Illinois, where it is also incorporated.
The citizenship of defendant Focus Insurance Agency is not
alleged either in the complaint or in the notice of removal.
plaintiffs bring this action asserting claims of breach of
contract, vexatious refusal to pay under an insurance policy,
and negligence. According to the complaint, on April 26,
2011, plaintiffs detected damage to the foundation and
basement walls of their house. Plaintiffs had a
homeowner’s insurance policy with Sentry at that time.
They made a claim to have repair of the foundation covered
under that policy. On May 9, Sentry denied the claim based on
its determination that the foundation damage resulted from
“settling, cracking, shrinking, bulging or expansion,
” a determination it made without inspecting the
property. [Doc. #4 at 6] The nature, extent, and cause of the
foundation damage thus bear directly on whether Sentry
breached the policy by denying the claim, and whether it did
Sentry’s denial of coverage, plaintiffs contacted
Helitech to inspect the property. On May 13, 2011, a Helitech
agent inspected the house and proposed to remediate the
foundation damage, at plaintiffs’ expense. Plaintiffs
entered into a contract with Helitech to perform the remedial
work and to prevent any future damage to the foundation.
Helitech completed the work in July 2011. Plaintiffs allege
that Helitech breached the contract and was negligent in
failing to perform the work properly and refusing to remedy
the ensuing damage to plaintiff’s property. Thus, the
nature, extent, and cause of the foundation damage are also
relevant to the issues of whether Helitech performed its
obligations under the contract or was negligent in performing
reasons discussed below, the actions giving rise to claims
against Focus and Nationwide are irrelevant here.
March 14, 2016, summonses were issued to all four defendants.
Helitech and Focus were served on April 7. Sentry and
Nationwide were served on April 11. On May 11, Sentry
removed, invoking jurisdiction based on diversity. 28 U.S.C.
§ 1332(a). Among other things, Sentry argued that the
claims against it have been improperly joined with, and are
separate and distinct from, the claims against all of the
other defendants. But Sentry did not move to sever those
claims in the state court, in the notice of removal, or at
any point thereafter. Further, though Sentry argues Focus has
been fraudulently joined, it does not advance that argument
with respect to Helitech or Nationwide. Nor does Sentry press
that the claims against Helitech have no reasonable basis in
fact and law, i.e., were fraudulently joined.
Nationwide, and Focus did not join Sentry’s notice of
removal. Sentry also did not state in the notice that it had
obtained the consent the co-defendants to remove. Neither
Helitech, Nationwide nor Focus has filed an explicit
statement of consent following removal. In fact, Helitech has
taken no action in the case following removal. On June 8,
plaintiffs timely moved to remand, inter alia,
arguing remand is required because not all defendants have
consented to removal.
non-jurisdictional requirements to remove a case from state
court to federal court are subject to “strict
construction.” Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108 (1941). “When a civil
action is removed solely under [28 U.S.C. §] 1441(a),
all defendants who have been properly joined and served must
join in or consent to the removal of the action.” 28
U.S.C. § 1446(b)(2)(A). In turn, 28 U.S.C. §
1441(a) provides for removal of “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction . . . .”
Where, as here, a defendant removes asserting original
jurisdiction purportedly on the basis of complete diversity,
pursuant to 28 U.S.C. § 1332(a), the consent requirement
of 28 U.S.C. § 1446(b)(2)(A) therefore applies.
“rule of unanimity ordinarily requires that a case be
remanded to the state court from which it was removed unless
all defendants join in the motion for removal.”
Casey v. FDIC, 583 F.3d 586, 591 (8th Cir. 2009)
(citations omitted). The “requirement serves important
interests-it prevents duplicative litigation and bars one
defendant from imposing his forum of choice on
co-defendants.” Christiansen v. W. Branch Cmty.
Sch. Dist., 674 F.3d 927, 933 (8th Cir. 2012) (citation
omitted). One exception to the rule of unanimity is that
“nominal defendants, those against whom no real relief
is sought, need not join in the petition” for removal.
Thorn v. Amalgamated Transit Union, 305 F.3d 826,
833 (8th Cir. 2002) (quotation marks and citations omitted).
The other such exception is for a defendant that has been
“fraudulently joined, ” which occurs only when
“there exists no reasonable basis in fact and law
supporting a claim against” that defendant.
Karnatcheva v. JPMorgan Chase Bank, N.A., 704 F.3d
545, 546 (8th Cir. 2013) (quotation marks and citation
omitted). A “party has been fraudulently joined if
there is no reasonable basis for predicting that the state
law might impose liability based upon the facts
involved.” Bradley Timberland Res. v. Bradley
Lumber Co., 712 F.3d 401, 405 (8th Cir. 2013) (quotation
marks and citation omitted).
“[e]ach defendant” has only “30 days after
receipt by or service on that defendant of the initial
pleading or summons” to remove. 28 U.S.C. §
1446(b)(2)(B). To avoid prejudicing a later-served
defendant’s ability to timely remove with unanimous
consent, if “a later-served defendant files a notice of
removal, any earlier-served defendant may consent to the
removal even though that earlier-served defendant did not
previously initiate or consent to removal.”
Id. § 1446(b)(2)(C). Consequently, regardless
of when multiple defendants are served, every defendant that
does not join a notice of removal at the time of filing must
consent following removal, or the case must be remanded.
See Marano Enters. of Kan. v. Z-Teca Rests.,
L.P., 254 F.3d 753, 757 (8th Cir. 2001).
“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.” Griffioen v.
Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182,
1187 (8th Cir. 2015) (quotation marks and citation omitted).
The Eighth Circuit has “specifically advised
non-removing defendants who wish to consent to removal to
either sign the notice of removal or file a timely and
unequivocal consent.” Id. (quoting
Christiansen, 674 F.3d at 933). However, “the
written indication of consent can come in various forms,
” and “the rule of unanimity” does
“not describe the form of or time frame for consent
when multiple defendants are involved.” Id.
Thus, the Eighth Circuit has “express[ed] no opinion
regarding whether ...