Petroleum & Franchise Capital, LLC v. Bedrock Oil, Inc. et al

Filing 24

ORDER remanding case to Connecticut Superior Court. See attached Order. Signed by Judge Vanessa L. Bryant on 05/02/14.(Rock, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PETROLEUM & FRANCHISE
CAPITAL, LLC,
Plaintiff,

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v.
BEDROCK OIL, Inc. ET AL.,
Defendants.

CIVIL ACTION NO.
3:14-CV-00553-VLB

MAY 2, 2014

ORDER REMANDING CASE TO CONNECTICUT SUPERIOR COURT
This case was removed to this court from the Connecticut Superior Court,
Judicial District of Danbury by defendants Bedrock Oil, Inc., Shahnaz Hirbod,
Sam Hirbod, Shereen Hirbod and John Doe as Trustee of the 2001 Hassan Hirbod
and Shahnaz Hirbod Revocable Trust (collectively, the “Removing Defendants”).
Counsel to the Removing Defendants represents in the Notice of Removal that
the Affidavit of Sam Hirbod (Exhibit B to the Notice of Removal) demonstrates
that defendants Eileen Hsu, Andy Jyunmin Chiu and Liu Tyng Lin (the “Nonremoving Defendants”) consent to the removal of the action. [Dkt. 1 at 2.]
However, the Affidavit of Sam Hirbod does not provide sufficient notice of
consent by the Non-removing Defendants. Sam Hirbod does not represent that
each Non-removing Defendant consents to the removal nor has any Nonremoving Defendant filed an affidavit consenting to the removal. Removal on
diversity grounds requires unanimous consent of all defendants who have been
served at the time of removal. See, e.g., Edelman v. Page, 535 F. Supp. 2d 290,
292 (D. Conn. 2008) (quoting Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432,

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437 (S.D.N.Y. 2006)). “District courts within this Circuit, . . . have consistently
interpreted the statute as requiring that all defendants consent to removal within
the statutory thirty-day period, a requirement known as the rule of unanimity.”
Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir. 2012) (internal quotation marks
and citation omitted). Although the Second Circuit “[has] not yet advised what
form a consent to removal must take,” the court in Pietrangelo “agree[d] . . . that
the remaining defendants must independently express their consent to removal.”
686 F.3d at 66 (citations omitted); cf. Nat’l Waste Assocs, LLC v. TD Bank, N.A.,
No. 3:10-cv-289, 2010 U.S. Dist. LEXIS 46730, at *15 (D. Conn. May 12, 2010)
(“[C]ourts within this District have adhered to strict construction of the removal
statute, enforcing the written consent requirement of the unanimity rule when
ruling on a motion to remand.”) (citations omitted). This Court has authority to
raise the issue of unanimity sua sponte. See, e.g., Bank of Am. Nat’l Ass’n v.
Derisme, No. 3:10-cv-900, 2010 U.S. Dist. LEXIS 82361, at *25 (D. Conn. Aug. 13,
2010) (noting that the court has “the authority under 28 U.S.C. § 1447(c) to
remand the case sua sponte based upon a procedural defect.”) (citing Mitskovski
v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006)).
Although there are certain exceptions to the requirement of unanimity, see
Edelman, 535 F. Supp. 2d at 293, none of them apply in this case. The Removing
Defendants assert in the Notice of Removal that “The Defendants were served
with a copy of the Summons and Complaint on March 25, 2014.” [Dkt. 1 at 2.] The
Court also notes that the state court docket indicates that both the Removing
Defendants and the Non-removing Defendants were served prior to removal. See

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Return of Service, Petroleum & Franchise Capital, LLC v. Bedrock Oil, Inc., et al.,
No. DBD-CV14-6014884-S (Conn. Sup. Ct. Mar. 27, 2014); Plaintiff’s Supplemental
Return of Service, Petroleum & Franchise Capital, LLC v. Bedrock Oil, Inc., et al.,
No. DBD-CV14-6014884-S (Conn. Sup. Ct. Apr. 22, 2014), No. 101.00; see also
Docket, Petroleum & Franchise Capital, LLC v. Bedrock Oil, Inc., et al., No. DBDCV14-6014884-S (Conn. Sup. Ct.), available at
http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=DBDCV
146014884S. Because the notice of removal does not demonstrate unanimous
consent to removal, the Court hereby REMANDS this case to the Connecticut
Superior Court.
IT IS SO ORDERED.

________/s/____________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: May 2, 2013

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