United States District Court, E.D. Missouri, Northern Division
MEMORANDUM AND ORDER OF REMAND
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
Nathan Shain Ford filed this action in a Missouri state court
against five defendants, namely IBEW Local #53, Associated
Electric Cooperative, Inc., Lynn Farnen, Stephen Iwanowicz,
and Bobby D. Rhoads. Defendant IBEW removed the action to
this Court on October 18, 2017, invoking this Court's
federal question jurisdiction. IBEW avers that, while couched
in terms of state law claims, Ford's claims against it
actually arise under the National Labor Relations Act and the
Labor-Management Relations Act, thereby providing federal
subject-matter jurisdiction over the claims. None of the
other defendants joined in or consented to removal, and they
now move to remand the case to state court. Because there is
no unanimity among the defendants to have this case heard in
the federal forum, I will grant the motion to remand.
filed this action in the Circuit Court of Randolph County,
Missouri, on August 28, 2017. Service was effected on
defendant Rhoads on September 5, but the sheriff's return
of service was not filed in the state-court file. Service was
effected on IBEW on September 20 and the return of service
was filed September 25. Nothing in the record shows that
formal service of process was effected on either Associated
Electric, Farnan, or Iwanowicz, but a letter from their
counsel to Ford's counsel dated October 3 confirmed that
these defendants, as well as defendant Rhoads, would respond
to the state-court petition no later than October 29.
IBEW filed its Notice of Removal on October 18, 2017. The
Notice does not identify any other defendant nor indicate
that any other defendant consented to the removal of the
action to federal court.
than one week later, on October 24, defendants Associated
Electric, Farnen, Iwanowicz, and Rhoads entered their
appearance in the case and filed this motion to remand,
arguing that IBEW's removal of the action was
procedurally deficient given IBEW's failure to obtain
their consent as required under 28 U.S.C. §
1446(b)(2)(A). They also affirmatively state that they do not
consent to IBEW's Notice of Removal. In response, IBEW
contends that it could not have known that any other
defendant had been served because no return of service or
other proof of service was filed at the time it filed its
Notice. IBEW also contends that, regardless, none of the
other defendants had been properly served when it filed its
Notice, and that it therefore was not required to obtain
their consent. IBEW does not respond to the other
defendants' affirmative representation to the Court that
they do not consent to removal.
defendants in a suit who have been properly joined and served
must consent to removal. 28 U.S.C. § 1446(b)(2)(A). This
“unanimity requirement” serves important
interests by “prevent[ing] duplicative litigation and
bar[ring] 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). The
failure of one defendant to consent renders the removal
defective. Pritchett v. Cottrell, Inc., 512 F.3d
1057, 1062 (8th Cir. 2008).
well-recognized that obtaining the consent of an unserved
defendant is not required to effectuate removal to federal
court. Roberts v. Palmer, 354 F.Supp.2d 1041, 1044
(E.D. Mo. 2005). Upon being served, however, a previously
unserved defendant has thirty days to unambiguously
communicate to the court that it joins in or consents to
removal. Amteco, Inc. v. BWAY Corp., 241 F.Supp.2d
1028, 1030, 1032 (E.D. Mo. 2003). It may also exercise its
right to choose the state forum by filing a motion to remand.
28 U.S.C. § 1448. By moving to remand once it appears in
the case, an unserved defendant “retains the right to
veto the removal[.]” Sorell v. Garrison Prop. &
Cas.. Ins. Co., No. 15-00845-CV-W-HFS, 2016 WL 9137638,
at *2 (W.D. Mo. Mar. 17, 2016) (internal citations and
quotation marks omitted). Since a defendant's motion to
remand signals that there is no unanimity among the
defendants to the federal forum, the case should be remanded.
IBEW argues that it was not required to obtain the consent of
any other defendant when it removed the case to this Court
because 1) it was unaware that any other defendant had been
served, since no proof of service had been filed; and 2) any
purported service was improper. Both arguments fail.
statutes must be strictly construed, Shamrock Oil &
Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941), and any
doubt about the propriety of removal must be resolved in
favor of remand. Pender v. Bell Asbestos Mines,
Ltd., 145 F.Supp.2d 1107, 1110 (E.D. Mo. 2001). When a
civil action is removed to federal court, 28 U.S.C. §
1446(b)(2)(A) requires that “all defendants who have
been properly joined and served must join in or consent to
the removal of the action.” I am not aware of any
authority - and IBEW cites to none - that establishes that a
removing party's lack of knowledge of service upon a
defendant excuses the statutory requirement of consent.
Nevertheless, regardless of this lack of knowledge, the other
defendants have timely and unambiguously communicated to this
Court that they do not consent to the removal of this action.
Because there is no unanimity among the defendants to this
federal forum, I must remand the case to state court.
extent IBEW also argues that none of the other defendants had
been properly served at the time of removal, any reliance on
this position is moot. The remaining defendants entered their
appearance in this action upon removal and immediately moved
to remand. While 28 U.S.C. § 1448 provides that any
defendant “upon whom process is served after
removal” has the right to move to remand the case,
formal service of process is not required if he has already
generally appeared in the action. See Creighton v.
Kerr, 87 U.S. 8, 12 (1873) (“A general appearance
waives all question of the service of process.”);
Pollard v. Dwight, 8 U.S. 421, 428-29 (1808)
(Defendants who appear in an action “place themselves
precisely in the situation in which they would have stood,
had process been served upon them[.]”); Knox v.
Summers, 7 U.S. 496, 497 (1806). Thus, an unserved
defendant retains the right to veto the removal by moving to
remand once it makes an appearance in the case.
Sorell, 2016 WL 9137638, at *2 (W.D. Mo. Mar. 17,
2016). Accordingly, whether or not service upon these
defendants was proper in the state forum, the question is
moot given their appearance in this Court upon removal.
although IBEW claims that it was not required to obtain the
consent of the other named defendants prior to removal
because of the lack of service and/or improper service, there
is no dispute that these defendants entered an appearance in
the case immediately upon removal, whereupon they sought
remand and affirmatively represented to the Court that they
do not consent to removal. Given the lack of unanimity among
the defendants, and the caveat that I must resolve all doubts
in favor of remand, I will remand this matter to state court.
IT IS HEREBY ORDERED that defendants
Associated Electric Cooperative, Inc., Lynn Farnen, Stephen
Iwanowicz, and Bobby D. ...