United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
G FLEISSIG UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's motion (ECF No.
7) to remand and several related motions arising out of
deficiencies in the notice of removal that attorney Gary
Eastman filed in this case on behalf of Defendant Veritas
Legal Plan, Inc. (“Veritas”). For the reasons set
forth below, Plaintiff's motion to remand and her related
motions will be denied.
filed his notice of removal on March 15, 2019, asserting that
the Court had federal question jurisdiction as well as
diversity jurisdiction over Plaintiff's
claims.Plaintiff does not dispute that the Court
has subject matter jurisdiction. However, Plaintiff seeks a
remand on the ground that the notice of removal was defective
because (1) Eastman has not been admitted to practice in this
Court and (2) the other remaining Defendant, the Law Offices
of Jeffrey Lohman (“Lohman”), never properly
consented to removal and cannot do so now, as the 30-day
deadline for removal under 28 U.S.C. § 1446(b)(1)
expired on March 18, 2019. Plaintiff further seeks
attorneys' fees and costs as a result of the improper
removal, under 28 U.S.C. § 1447(c).
stated in his notice of removal that Lohman consented to the
removal and that a copy of Lohman's consent was attached,
but Eastman failed to attach the written consent. Eastman
also failed to timely respond to Plaintiff's motion to
remand.However, after Plaintiff filed the motion
to remand, Eastman filed a motion to amend his notice of
removal (ECF No. 8) in order to attach Lohman's consent,
which Eastman contends he inadvertently failed to attach to
the original notice. The consent to removal is dated March
15, 2019 and is signed by Eastman on behalf of Lohman.
after Plaintiff filed the motion to remand, Eastman filed a
motion for leave to appear pro hac vice (ECF No. 8). As
Plaintiff notes, Eastman's motion states that he is
moving for admission “for the purpose of representing
Michael Brown” in this matter. ECF No. 8. The reference
to Michael Brown, who is not a party in this matter, is
obviously a typographical error. Eastman also failed to
attach a certificate of good standing from the highest court
of the state in which he resides or is regularly employed as
an attorney, as required under Local Rule 83-12.01(F). After
being contacted by the Clerk of Court regarding this error,
Eastman supplemented his motion with a certificate of good
standing from the Supreme Court of Kansas, where Eastman
resides and practices. ECF No. 14.
has moved to strike (ECF No. 11) Eastman's motion to
amend on the ground that Eastman cannot consent for Lohman in
this Court because Eastman has not been admitted to practice
in this Court. Plaintiff also argues that Eastman's
motion for admission pro hac vice should be denied.
initial matter, the Court will grant Eastman's motion for
admission pro hac vice. The Court will deem the motion to
seek admission pro hac vice for the purpose of representing
Defendants Veritas and Lohman. Although Eastman failed to comply
with the local rule regarding the attachment of his
certificate of good standing, he cured this deficiency upon
notice by the Clerk of Court.
Court then turns to the question of Defendants'
compliance with the requirement under 28 U.S.C. § 1446,
that “all defendants who have been properly joined and
served must join in or consent to the removal of the
action.” Although the statute does not specify what
form the consent must take, the Eighth Circuit has 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.”
Griffioen v. Cedar Rapids & Iowa City Ry. Co.,
785 F.3d 1182, 1188 (8th Cir. 2015). This is true even if, as
here, the co-defendant does not file its notice of consent to
removal until after the 30-day deadline for removal.
Id. In this regard, the Eighth Circuit has
“been disinclined to apply the unanimity requirement in
a ‘hypertechnical and unrealistic manner.”
Id. (citation omitted). Thus, the Court concludes
that Lohman's consent in this case was sufficient.
Eastman's timely filed and signed notice of removal
indicated Lohman's consent, and Eastman later filed
Lohman's notice of consent.
Eastman was not at that time admitted to practice in this
Court, Plaintiff has not pointed to the Court to any
authority compelling remand in such a case. The Court
declines to remand, particularly now that Eastman will be
admitted pro hac vice. See, e.g., Disc. Tobacco
Warehouse, Inc. v. Briggs Tobacco & Specialty Co.,
Inc., No. 3:09-CV-05078-DGK, 2009 WL 10672293, at *1
(W.D. Mo. Nov. 17, 2009) (declining to remand where an
attorney failed to move for admission pro hac vice before
filing his notice of removal, and noting that remand in such
a case would be “heavy-handed”). However, as
previously noted, the Court cautions Eastman to carefully
adhere to the Court's requirements and local rules going
reasons set forth above, IT IS HEREBY
ORDERED that Plaintiff's motions to remand, to
“confess” her motion to remand, and to strike
certain filings of Gary Eastman are DENIED.
ECF Nos. 7, 10, 11 &13.
IS FURTHER ORDERED that Gary Eastman's motions
for leave to appear pro hac vice and to amend his notice of