Nathe v. Pottenberg
1995 WL 868598, 931 F.Supp. 822, 1995 U.S. Dist. LEXIS 21033 (1995)
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Rule of Law:
Under the rule of unanimity, all served defendants must provide a direct, formal, and timely indication of their consent to removal on the court record; an assertion of consent by another defendant's counsel in the notice of removal is insufficient.
Facts:
- Defendants John F. Pottenberg and Myrna Elaine Homer decided to remove a state court case against them to federal court.
- Their attorney spoke with a representative of the third defendant, Hartford Insurance Company, who verbally indicated that Hartford consented to the removal.
- The attorney for Pottenberg and Homer filed a notice of removal which they signed.
- The notice of removal included a statement that counsel had spoken with Hartford and that Hartford consented to the removal.
- Hartford did not sign the notice of removal itself or file any separate document indicating its consent within the 30-day removal period.
- After the notice of removal was filed, Hartford filed a standard answer to the complaint in federal court, but the answer did not contain an explicit statement of consent to the removal.
Procedural Posture:
- The plaintiff, Nathe, filed a civil action against defendants Pottenberg, Homer, and Hartford in the Sixth Judicial Circuit Court for the State of Florida (state trial court).
- After being served, defendants Pottenberg and Homer filed a joint notice of removal to the U.S. District Court for the Middle District of Florida.
- Defendant Hartford subsequently filed its answer and affirmative defenses in the U.S. District Court.
- The plaintiff, Nathe, filed a motion to remand the case back to state court, arguing that the removal was procedurally defective because Hartford failed to properly join or consent to it.
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Issue:
Does a notice of removal satisfy the unanimity requirement when one defendant's counsel asserts that another, non-signing defendant consents to the removal, but that other defendant fails to provide its own timely, formal indication of consent to the court?
Opinions:
Majority - Merryday, District Judge
No. The removal is procedurally deficient because each defendant must directly and formally express its consent to removal on the record within the 30-day statutory period. Following the persuasive reasoning of the Fifth Circuit in Getty Oil Corp., the court held that there must be a 'timely filed written indication from each served defendant' that it has consented. A mere statement by another party's counsel is insufficient because it does not formally bind the non-signing defendant. This requirement ensures the court has a 'clear and unequivocal basis for subject matter jurisdiction.' A procedural defect in the removal notice is not cured by a defendant later filing a standard answer that does not explicitly state consent to removal.
Analysis:
This decision solidifies a strict interpretation of the procedural requirements for removal under 28 U.S.C. § 1446, particularly the rule of unanimity. It establishes a clear precedent that informal or second-hand assertions of consent are invalid, requiring each defendant to affirmatively and independently communicate their consent directly to the court. This ruling emphasizes the principle that removal statutes are strictly construed against removal, placing a clear burden on defendants to perfect their procedure meticulously or face remand to state court.
