United States District Court, W.D. Missouri, Western Division
ORDER (1) HOLDING IN ABEYANCE PLAINTIFF'S MOTION
TO REMAND, (2) DIRECTING THE PARTIES TO SUPPLEMENT THEIR
BRIEFS, AND (3) ORDER TO SHOW CAUSE
ROSEANN A. KETCHMARK, JUDGE.
matter comes before the Court on Plaintiff Sarah
Mikelson's Motion to Remand. (Doc. 7.) For the following
reasons, the Court HOLDS IN ABEYANCE its ruling on the
motion, directs the parties to supplement their briefs on the
nominal party issue, and further directs Plaintiff to respond
to the Court's show cause directive.
October 31, 2016, Plaintiff originally filed this lawsuit in
the Circuit Court of Jackson County, Missouri. The lawsuit
consists of three defendants: Ashley Stevenson
(“Stevenson”), Allstate Fire and Casualty
Insurance Company (“Allstate”), and Progressive
Direct Insurance Company (“Progressive”). (Doc.
1-1.) In her petition, Plaintiff alleges that she was injured
in an accident that occurred in Kansas City, Missouri, when
Stevenson's vehicle hit the motorcycle upon which
Plaintiff was riding. Plaintiff alleges that at the time of
the accident, she was insured under policies issued by
Allstate and Progressive. Plaintiff's first cause of
action (Count I) seeks to recover uninsured motorist benefits
under the Allstate policy and Plaintiff's second cause of
action (Count II) seeks a declaratory judgment stating that
Progressive does not have a lien on money offered by
Stevenson's insurance company as settlement for
Plaintiff's separate underlying liability claims.
was served on November 14, 2016, and thereafter filed a
Notice of Removal on November 21, 2016. The Notice of Removal
alleges that jurisdiction exists pursuant to 28 U.S.C. §
1332, because there is complete diversity of citizenship
between Plaintiff and all defendants and the amount in
controversy exceeds $75, 000. (Doc. 1.) Plaintiff is a Kansas
citizen; Stevenson is a Missouri citizen; Allstate is
Illinois corporation and has its principal place of business
in that state; and Progressive is an Ohio corporation and its
principal place of business in that state. Allstate's
Notice of Removal states that as of the date of removal, its
two co-defendants had not been served. (Doc. 1 at 2,
¶¶ 4, 9-10.)
filed her Motion to Remand on November 23, 2016, in which she
raises multiple bases for remand. Plaintiff raises both
jurisdictional and procedural issues, and while the Court
concludes that removal procedures were followed, the
parties' discussion is insufficient to facilitate a
meaningful analysis of the Court's jurisdiction. As
discussed below, the Court holds its ruling on
Plaintiff's Motion to Remand in abeyance upon additional
briefing by the parties. At present, the Court will resolve
the following two issues raised by Plaintiff's Motion to
Remand-(1) the rule of unanimity and (2) the forum-defendant
rule with respect to unserved defendants.
The Rule of Unanimity
Court first addresses Plaintiff's argument that
Allstate's removal is procedurally defective by
Allstate's failure to satisfy the unanimity requirement.
U.S.C. § 1446(b)(2)(A) provides that “[w]hen a
civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join
in or consent to the removal of the action.”
“Where there are multiple defendants, all must join in
[removal] within thirty days of service.”
Christiansen v. Branch Cmty. Sch. Dist., 674 F.3d
927, 932 (8th Cir. 2012) (citation omitted). It is not
necessary for all defendants to actually sign the notice of
removal so long as there is “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.” Pritchett v. Cottrell, Inc., 512
F.3d 1057, 1062 (8th Cir. 2008) (citation and internal
quotation marks omitted). Stemming from the rationale that
the unanimity requirement should not be applied in a
hypertechnical and unrealistic manner, the written indication
of consent can come in various forms. Griffioen v. Cedar
Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1187 (8th
Cir. 2015). In Griffioen, the Eighth Circuit held
“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
establishes that codefendant's consent to removal.”
Id. at 1188.
exception to the rule of requiring codefendants to join in
removal, defendants not yet served at the time of removal
need not join in removal. See Hutchins v. Priddy,
103 F.Supp. 601, 603-04 (W.D. Mo. 1952); Roberts v.
Palmer, 354 F.Supp.2d 1041, 1044 (E.D. Mo. 2005).
Later-served defendants may still object to removal. 28
U.S.C. § 1448 provides as follows:
[i]n all cases removed from any State court to any district
court of the United States in which any one or more of the
defendants has not been served with process or in which the
service has not been perfected prior to removal, or in which
process served proves to be defective, such process or
service may be completed or new process issued in the same
manner as in cases originally filed in such district court.
This section shall not deprive any defendant upon whom
process is served after removal of his right to move to
remand the case.
in this circuit are divided on the manner in which a
non-removing co-defendant satisfies the unanimity
requirement. Compare Sorell v. Garrison Property and
Casualty, Ins. Co., No. 4:15-00845-HFS (Doc. 22) (W.D.
Mo. Mar. 17, 2016) (“The later-served defendant's
right to veto the removal by moving to remand renders any
need for the later-served defendant to join the removal
superfluous: if the later-served defendant wants to be in
federal court he does nothing; if he prefers a state forum he
moves to remand.” (citation omitted)) with Noel v.
Laclede Gas Co., 612 F.Supp.2d 1051, 1055-56 (E.D. Mo.
2009) (“Removal jurisdiction requires all defendants to
join in the removal petition or [if later-served, ] consent
to removal within thirty days of service.” (citation
Allstate's Notice of Removal states that Progressive and
Stevenson were unserved defendants at the time of removal.
(Doc. 1 at 2, ¶¶ 9-10.) Plaintiff's Motion to
Remand then challenged the validity of removal on the basis
that Allstate “has not shown the Court that the other
Defendants join in the removal.” (Doc. 7 at 3, ¶
7.) In its opposition to the Motion to Remand, Allstate
represents that “Progressive consents to removal of
this case.” (Doc. 10 at 2.) In support of this
assertion, Allstate has also submitted an email, which is
dated December 2, 2016, and appears to have been sent by a
“Casualty Manager” at Progressive to
Allstate's counsel, with the following subject line:
“Mikelson vs. Allstate, Stevenson and Progressive Our
Claim 16-4332567.” (Doc. 10 at 7, Exhibit B.) The body
of the email contains this statement: “this will
confirm our discussion of this afternoon where I told you
that Progressive consents to having this matter removed to
federal court.” (Id.) Plaintiff, in her reply,
points out that “the Sheriff has now filed his return.
It actually shows that Progressive was served before Allstate
was served. Both Defendants were served by the Director of
Insurance of Jefferson City.” (Doc. 11 at 2.)
the docket in this case does not contain proof of service
upon Progressive, the Court takes judicial notice of the
state court case, Jackson County, Missouri, Case No.
1616-CV26412. The state case includes a proof of service
filed on November 28, 2016. Despite Plaintiff's assertion
that “Progressive was served before Allstate[, ]”
the docket entries in the state court case indicate that both
Allstate and Progressive were served at the same time on
November 14, 2016. (Doc. 11 at ...