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finding no exceptional circumstances when the defective notice involved untimely consent to removal by a defendant, not plaintiff misconduct
Summary of this case from Manzanarez v. Liberty Mut. Fire Ins. Co.Opinion
No. 10-41252 Summary Calendar.
June 28, 2011.
Emerson Emanuel Arellano, Ramon L. Garcia, Law Office of Ramon Garcia, Edinburg, TX, for Plaintiff-Appellee.
John Bennett White, IV, Esq., J. Bennett White, P.C., Kurt Mark Noell, Esq., Tyler, TX, for Defendants-Appellants.
Appeals from the United States District Court for the Southern District of Texas, No. 7:10-cv-00334.
Before JOLLY, GARZA, and STEWART, Circuit Judges.
Defendants-Appellants Thomas distress. Action was removed to federal Young ("Young") and Atlas Credit Company, Inc. ("Atlas") (collectively "Appellants") bring this appeal following the district court's grant of Plaintiff-Appellee Nicole Ortiz's ("Ortiz") motion to remand. AFFIRMED.
I.
On June 17, 2010, Ortiz filed suit in the 206th Judicial District Court of Hidalgo County, Texas. Her suit against Atlas alleged violations under Title VII of the Civil Rights Act of 1964. Against Young, Ortiz asserted claims against Young, Atlas's owner, for assault and intentional infliction of emotional distress. Ortiz served both with citation on July 23, 2010. On August 16, 2010, pursuant to 28 U.S.C. § 1441(b), Atlas filed its application for removal to the Southern District of Texas. Atlas's application made no mention of Young. On September 14, 2010, Ortiz filed a motion to remand arguing that removal was defective because not all defendants had consented to removal within thirty days. On September 20, 2010, Young consented to removal. On November 3, 2010, the district court granted Ortiz's motion for remand. This appeal followed.
II. A.
We review de novo a district court's determination of the propriety of removal. Webb v. Investacorp, Inc., 89 F.3d 252, 255 (5th Cir. 1996).
B.
28 U.S.C. § 1446(a) requires that all defendants join in a petition for removal. Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen Assistants' Local 349, 421 F.2d 325, 326-27 (5th Cir. 1970). This requires that all served defendants join in the removal petition prior to the expiration of the removal period. Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002). Section 1446(b) explains that the "notice of removal of a civil action or proceeding shall be filed within thirty days" after service of the citation. 28 U.S.C. § 1446(b). In Doe v. Kerwood 969 F.2d 165 (5th Cir. 1992), we held that when a civil action has multiple defendants, as is the case here, then all defendants must act collectively to remove that case. Id. at 167. This requirement has been named the "unanimity of consent rule." Id.
C.
Here, Atlas timely filed an application to remove the matter. 28 U.S.C. § 1446(b). Young did not. Thus, removal was defective and remand appropriate. Kerwood, 969 F.2d at 169. Young appeals to the district court's equitable powers to excuse his tardy application for removal. This court has held that sometimes exceptional or unique circumstances might permit removal after the expiration of the thirty day period prescribed by § 1446(b). Brown v. Demco, 792 F.2d 478, 482 (5th Cir. 1986); Getty Oil Co. v. Ins. Co. of N. Am., 841 F.2d 1254, 1263 (5th Cir. 1988); Gillis, 294 F.3d at 759. Yet, as Ortiz correctly indicates, those instances where this court has exercised its equitable powers to permit a party to consent to removal outside of the statutorily prescribed time frame often concern plaintiff conduct, and not untimely consent to removal by a defendant. For example, in Brown, we stated that "[e]xceptional circumstances might permit removal" when confronting bad faith efforts to prevent removal. 792 F.2d at 482. Meanwhile, Kerwood permits removal out-side of the window in order to prevent injustice. Kerwood, 794 F.3d at 759. Here, no such conduct by Ortiz in her service of citation compels the court to exercise its equitable powers. Moreover, no injustice will be obviated by the court condoning tardy consent to removal.
As an aside, we note that in neither his opening brief nor in his reply brief does Young address which exceptional circumstances should compel the district court to permit him to consent to removal outside of the thirty day period outlined in 28 U.S.C. § 1446. Instead, Young merely quibbles with the district court's declining to permit him to do so. Thus, because Young failed to consent to removal as prescribed in 28 U.S.C. § 1446(b), the district court's remand of this matter was not in error.
III.
For the reasons stated above, the judgment of the district court is AFFIRMED.