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When removing a multidefendant case to federal court, all the defendants must formally join in the removal petition and cannot simply inform the court in a petition from one defendant that the others have “consented” to the removal, a federal judge has ruled. “It is well-settled in this district that one defendant may not speak for another in filing a notice of removal,” U.S. District Judge Anita B. Brody wrote in a five-page order in Green v. Target Stores Inc. Finding that one defendant’s written notice was filed too late, Brody, of the Eastern District of Pennsylvania, remanded the case to the Philadelphia Court of Common Pleas. In the suit, plaintiffs Beverly and Stephen Green named seven defendants — three entities related to Target Stores Inc. and four related to Schindler Elevator Corp. The three Target Stores defendants were served with the suit on Dec. 19, and the four Schindler Elevator defendants were served on Dec. 30. Target Stores’ lawyers — Jeffrey L. O’Hara and Peter Y. Lee of Connell Foley in Roseland, N.J. — removed the case to federal court on Jan. 20, noting in their petition that “counsel for Schindler Elevator has consented to removal of this action.” On Feb. 4, Schindler Elevator’s lawyer, K. Jennifer Lee of Marshall Dennehey Warner Coleman & Goggin, joined in the removal petition. In a letter to the court, Lee said that on Jan. 13, Schindler Elevator had “expressly provided Target’s counsel with consent to remove this case.” In response, plaintiffs attorneys Bradley H. Kane and Edwin Dashevsky of Dashevsky Horwitz DiSandro Kuhn & Novello argued that the case should be remanded to state court because the removal was improper. Brody found that the federal removal statute calls for removal within 30 days of receipt of the complaint. And while the statute does not require that all defendants join the removal petition, Brody found that 3rd U.S. Circuit Court of Appeals law has imposed a “rule of unanimity” since 1985. The defense lawyers didn’t dispute that they were required to join in the removal, but they argued that they had complied with the requirement by including in Target Stores’ removal petition an averment of Schindler Elevator’s consent. Brody disagreed, saying that judges in the U.S. District Court for the Eastern District of Pennsylvania have consistently required that “each consenting defendant must either sign the notice of removal, file its own notice of removal, or file a written consent or joinder to the original notice with the court.” And the Eastern District is not alone, Brody noted, citing decisions from the District of Rhode Island, the Eastern District of New York, the Southern District of Florida and the Eastern District of Michigan. In a footnote, Brody said that the 3rd Circuit had never addressed the question of what is required for proper joinder but that the appellate court’s silence — and the “scarcity of any circuit court law on this issue” — was the result of the removal statute’s provision that remand orders are not reviewable on appeal. Brody decided to follow the 2001 decision by Senior U.S. District Judge Lowell A. Reed in Morganti v. Armstrong Blum Manufacturing Co., which held that “consent to join in a notice of removal must be express, official and unambiguous.” Reed had similarly rejected one defendant’s averment of another defendant’s consent to removal on the ground that “one defendant may not speak for the other.” Brody said, “ Morganti guides my decision because the defendants there, like those before me, offered evidence that there had been a meeting of the minds on the removal petition, despite the lack of all defendants’ signatures on the removal petition.” But evidence of a meeting of the minds is not enough, Brody said. “Although there is evidence that Schindler Elevator may have in fact consented to the removal in correspondence with Target Stores, its failure to file an official notice with the court makes the removal procedure defective,” Brody wrote. In a footnote, Brody offered another reason for rejecting the removal petition beyond those mentioned in Morganti. “Removal to federal court (in the absence of a federal question) is predicated on complete diversity [of citizenship] between each defendant and the plaintiff. Each defendant, by expressly consenting to removal, is stating to the court that diversity is established between that defendant and the plaintiff. This statement is necessary to ensure jurisdiction and must be a part of the proper removal procedure,” Brody wrote.

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