United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTION TO REMAND
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
suit concerns alleged violations of the Missouri Human Rights
Act by Defendants Gerdau Ameristeel U.S., Inc.
(“Gerdau”), Charles Renner
(“Renner”), and Moses Artis, Jr.
(“Artis”). Plaintiff Christy Gauert
(“Plaintiff”) filed this action in the Circuit
Court of Jackson County, Missouri, on August 25, 2016. On
October 10, 2016, Defendant Renner removed this case on
behalf of all defendants, invoking the Court's diversity
jurisdiction. On October 25, 2016, Plaintiff voluntarily
before the Court is Plaintiff's Motion to Remand (Doc.
8). For the reasons set forth below, Plaintiff's motion
asserts remand is warranted because: (1) the voluntary
dismissal of Defendant Renner renders the notice of removal
ineffective; and (2) Defendant Artis did not timely consent
to removal. These arguments are without merit.
The voluntary dismissal of Defendant Renner did not render
the notice of removal ineffective, and the
Court maintains jurisdiction over this matter.
Plaintiff argues this matter must be remanded due to the
voluntary dismissal of the removing defendant, Charles
Renner, on October 25, 2016. She argues that several district
courts, including the Eastern District of Missouri, have held
that remand may be appropriate upon either a change in the
position of the parties or a claims change if no substantial
commitment of judicial resources has yet occurred. See,
e.g., Rotermund v. United States Steel Corp.,
346 F.Supp. 69, 76 (E.D. Mo. 1972).
falls within the court's original diversity jurisdiction
if the parties are citizens of different states and the
amount in controversy exceeds $75, 000, exclusive of interest
and costs. 28 U.S.C. § 1332(a). It is also well
established that “the court's jurisdiction is
measured either at the time an action is commenced, or more
pertinent to this case, at the time of removal.”
Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 822
(8th Cir. 2011). Jurisdiction is determined at the time of
removal, even though later events may have removed from the
case the facts on which jurisdiction was predicated,
including the dismissal of a defendant. Hargis v. Access
Capital Funding, L.L.C., 674 F.3d 783, 789 (8th Cir.
it is undisputed that at the time of removal: (1) Plaintiff
was a citizen of Missouri at the time the cause of action
arose, see Pl.'s Pet. ¶ 6.; (2) Gerdau was
a Florida corporation registered and authorized to conduct
business in the State of Missouri, id. ¶ 7; (3)
Defendants Renner, Artis, and Richards were residents of the
State of Kansas, id. ¶¶ 8, 10; Polly Decl.
¶ 10 (Doc. 1-2); and (4) the amount in controversy was
believed in good faith to exceed $75, 000, see Id.
¶¶ 5, 90. Under these facts, diversity jurisdiction
still exists. The dismissal of Charles Renner as a defendant
does not destroy diversity in this case, and his dismissal is
immaterial because removal was appropriate at the time of the
the Court maintains jurisdiction over this matter.
The consent requirement of 28 U.S.C. § 1446 was timely
next argues that removal was improper because Defendant
Renner and his counsel failed to obtain the consent of
Defendant Artis. On October 5, 2016, Attorney Barrett
represented Artis and stated that he would not consent to
removal, but anticipated he would soon cease to represent
Artis. On the day of the filing, October 10, 2016, Barrett
stated he was anticipating a substitution of counsel for
Artis, but had not yet seen it. Given these facts, Plaintiff
argues Littler Mendelson did not represent Artis, nor have
the authority to consent on his behalf, when counsel filed
for removal on October 10th.
civil actions removed under 28 U.S.C. § 1441(a), all
defendants properly joined and served must join in or consent
to the removal of the action. 28 U.S.C. § 1446(b)(2)(A).
The Eighth Circuit has advised non-removing defendants to
sign the notice of removal or file a timely consent should
they wish to join in or consent to removal. Christiansen
v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 933 (8th
Cir. 2012). The unanimity of consent requirement may also be
satisfied if a defendant, or some person with authority to
act on the defendant's behalf, consents to removal and
the removal is timely. Pritchett v. Cottrell, Inc.,
512 F.3d 1057, 1062 (8th Cir. 2008). An attorney has the
authority to act on a client's behalf in consenting to
removal. See Id. Even where a removing defendant
does not expressly manifest consent initially, he may later
file an indication of his consent, mitigating any concerns
regarding his codefendant's authority to have consented
on his behalf. Griffioen v. Cedar Rapids & Iowa City
Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015).
Artis filed a declaration on November 11, 2016, stating under
penalty of perjury that he was represented by Littler on the
date of removal and had authorized his consent. The Court
thus finds Littler had the authority to act on Artis's
behalf at the time of ...