Opinion
Civil Action No. 04-CV-2022.
August 6, 2004
MEMORANDUM ORDER
On or about April 14, 2004, Plaintiffs Fernando and Kathleen Tellado commenced the instant action in the Court of Common Pleas of Philadelphia County. Between April 17 and April 19, 2004, five of the six Defendants were properly served. On May 10, 2004, Defendant Austin-Hunt Corp. filed its Notice of Removal (Doc. No. 1) to this Court based upon diversity jurisdiction.
Presently before the Court is Plaintiffs' Motion to Remand (Doc. No. 2). Plaintiff argues that because not all of the Defendants consented to removal within thirty days of service of the initial Complaint, there is a lack of unanimity, and the action cannot be removed. For the following reasons, we will grant Plaintiffs' Motion.
I. BACKGROUND
On April 17, 2004, Plaintiffs served copies of the Complaint on Defendants Roto-Die, Inc.; FECO Engineered Systems, Inc.; Austin-Hunt Corp. (Pls.' Mem. of Law in Support of Their Mot. to Remand at unnumbered 1.) On April 19, 2004, Plaintiffs served copies of the Complaint on Defendants Park-Ohio Industries, Inc.; and Tocco, Inc. ( Id. at unnumbered 2.) Defendant Production Products, Inc. was never served.
On May 10, 2004, Austin-Hunt Corp. filed a Notice of Removal on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. Roto-Die, Inc. consented to removal on June 9, 2004. Park-Ohio Industries, Inc., and Tocco, Inc., consented to removal by stipulation of June 8, 2004. (Doc. No. 4 Ex. A.) Feco Engineered Systems, Inc. has not yet consented to the removal.
In Austin-Hunt's Reply to Plaintiff's Motion to Remand, Austin-Hunt's counsel states that as of June 3, 2004, her law firm also undertook representation of Roto-Die, Inc., and that Roto-Die, Inc. consents to removal. (Doc. No. 4 at 2.)
Counsel for Austin-Hunt believes that Feco Engineered Systems, Inc. was recently acquired by Park-Ohio Industries. (Doc. No. 4 at 3.) However, nothing in Park-Ohio Industries, Inc.'s recently-filed Answer indicates this to be true. (Doc. No. 10.)
II. DISCUSSION
Plaintiffs argue that removal was not proper because not all of the Defendants consented to removal. Plaintiffs argument is based on the fact that all of the Defendants except Austin-Hunt Corp. failed to join in the Notice of Removal or otherwise communicate to the Court its consent to the removal within thirty days of receipt of the Complaint, as required by 28 U.S.C. § 1446(b). Through the "rule of unanimity," section 1446 has been construed to require that all defendants join in a removal petition, or consent to removal of the case. Jordan v. Phila. Housing Auth., Civ. A. No. 91-6191, 1991 WL 236465, at *1 (E.D. Pa. Nov. 5, 1991) (citing Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). In situations where there are multiple defendants, it has been held that all of the defendants must consent to removal within thirty days of the service of the complaint. Id. (citing Collins v. American Red Cross, 724 F. Supp. 353, 359 (E.D. Pa. 1989)).
There is some dispute as to when this thirty-day period begins to run. Some courts have held that all defendants must consent to removal within thirty days from the time the first defendant is served. See e.g. Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986); Biggs Corp. v. Wilen, 97 F. Supp. 2d 1040, 1045 (D. Nev. 2000); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 530 (E.D. Pa. 1982). Other courts have adopted the "later-served defendant" rule where "each defendant to an action is entitled to thirty days after service to remove an otherwise removable action and . . . all defendants can consent to that removal, even if their own thirty-day periods have expired." Liberty Mut. Ins. Co. v. Bayer Corp., No. 02-343, 2002 WL 1467331, at *5 (D. Del. July 8, 2002) (quoting Griffith v. Am. Home Prods., 85 F. Supp. 2d 995, 998 (E.D. Wa. 2000)). See also Marano Enters. v. Z-Teca Rests., L.P., 254 F.3d 753, 757 (8th Cir. 2001) (adopting the "later-served defendant rule); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999) (same).
In the instant case, this lack of unity among the courts is inconsequential. Under either rule, removal was improper. Five of the six Defendants in this case were served on or by April 19, 2004. Even applying the more liberal "later-served defendant" rule, all of the Defendants only had until May 19, 2004, to consent to removal. This did not happen. Four of the Defendants did not consent to removal until June, and FECO Engineered Systems, Inc., has still not consented. As unanimity is lacking, we have no choice but to grant Plaintiffs' Motion and remand the case to the Court of Common Pleas of Philadelphia County.
An appropriate Order follows.
Since this case was removed to this Court, Plaintiffs have subsequently filed another action in the Court of Common Pleas of Philadelphia County (June Term, 2004 No. 0535). Austin-Hunt removed that action as well, and it was assigned to this Judge under Civil Action number 04-3382. While this subsequent action includes an additional Defendant, Sabina Manufacturing, it is unclear how this action is otherwise different than the action instantly before us. A perusal of the two Complaints shows that they are almost identical. Since the record in that case has yet to be fully developed we take no action with regard to that case at this time.
ORDER
AND NOW, this 6th day of August, 2004, upon consideration of Plaintiffs' Motion to Remand (Doc. No. 3), and all papers in support thereof, and opposition thereto, it is ORDERED that Plaintiffs' Motion is GRANTED; and the Clerk of Court is directed to REMAND this case to the Court of Common Pleas of Philadelphia County.IT IS SO ORDERED.