Griffin v. Lowe's Companies, Inc. et al

Filing 32

ORDER denying 24 Motion to Remand to State Court. Signed by Judge Gregory A. Presnell on 6/5/2018. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JAMES ALTON GRIFFIN,
Plaintiff,
v.

Case No: 6:18-cv-378-Orl-31TBS

LOWE’S COMPANIES, INC., LG
SOURCING, INC. and NEXGRILL
INDUSTRIES, INC.,
Defendants.

ORDER
This matter comes before the Court without a hearing on the Motion to Remand (Doc. 24)
filed by the Plaintiff, James Griffin (henceforth, “Griffin”), and the response in opposition (Doc.
31) filed by the Defendants.
I.

Background

Griffin filed this products liability case in state court on February 9, 2018. In his
Complaint (Doc. 2), he alleges that a gas grill he purchased from a store operated by Defendant
Lowe’s Companies, Inc. (“Lowe’s”) exploded when he tried to use it, causing him to suffer
serious injuries. Griffin is a Florida resident. Lowe’s is a North Carolina company; the other
two defendants – LG Sourcing, Inc. (“LG Sourcing”) and Nexgrill Industries, Inc. (“Nexgrill”) –
are residents of California for purposes of diversity jurisdiction. 1 Griffin alleges that all three

1

Griffin contends, and the Defendants do not dispute, that LG Sourcing is a subsidiary of
Lowe’s. (Doc. 24 at 4).

Defendants played a role in “designing, manufacturing, assembling, producing, importing,
distributing, supplying, marketing, and selling” his grill. (Doc. 2 at 1-2).
On March 12, 2018, the matter was removed to this Court pursuant to 28 U.S.C. §1446(b)
on the basis of diversity jurisdiction. The Notice of Removal (the “Notice”) (Doc. 2) was filed by
Defendants Lowe’s and Nexgrill. (Doc. 1 at 1). According to the Notice, those parties had been
served on February 16 and February 19, respectively. (Doc. 1 at 2). The attorney who filed the
Notice of Removal informed the Court in that document that, while he did not think that
Defendant LG Sourcing had been served at that time,
[t]he undersigned will be representing Defendants Lowe’s, Nexgrill,
and LG Sourcing, Inc. in this action and can represent to the Court
that all Defendants consent to the removal.
(Doc. 2 at 2).
On March 16, 2018, counsel for the Plaintiff filed in this court a return of service for LG
Sourcing (Doc. 6), indicating that it had been served on February 16 – i.e., several weeks before
the filing of the Notice of Removal. 2 On March 29, 2018, LG Sourcing filed a notice (Doc. 15)
informing the Court of its consent to the removal.
By way of the instant motion, Griffin contends that the Notice of Removal does not reflect
consent on the part of LG Sourcing to the removal, and that, as a result, remand is required.
II.

Analysis

28 U.S.C. § 1441 authorizes a defendant to seek removal to federal court of a suit
originally brought in state court. The procedure for such removals is governed by 28 U.S.C.
§ 1446. Where, as here, an action is removed pursuant to Section 1441(a), 3 Section 1446

2

The return of service was originally filed in the state court case, but the record does not
indicate the date of that original filing.
3

Section 1441(a) provides in pertinent part that a defendant or defendants may remove

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requires that all defendants who have been properly joined and served must join in or consent to
the removal of the action, and it provides that each defendant shall have 30 days after receiving or
being served with the initial pleading or summons to file the notice of removal. 28 U.S.C.
§ 1446(b)(2). Failure to abide by this so-called “unanimity requirement” requires a remand of the
case back to state court. See, e.g., Russell Corp. v. American Home Assur. Co., 264 F.3d 1040,
1050 (11th Cir. 2001).
Griffin contends remand is required in this case because the Notice of Removal “does not
reflect [LG Sourcing]’s consent to remove” and because LG Sourcing did not otherwise join in or
indicate its consent to removal within the required 30-day time period, thereby violating the
unanimity requirement. (Doc. 24 at 3). Taken literally, Griffin is wrong on the facts, because as
quoted supra, the Notice of Removal clearly states that all of the Defendants, including LG
Sourcing, consent to the removal. (Doc. 2 at 2). Griffin contends that the representation made in
the Notice of Removal – i.e., that the attorney filing the notice would be representing the nonmoving party, and that party consented to removal – was legally insufficient to satisfy the
unanimity requirement. (Doc. 24 at 5). However, the cases he cites in support of this position
are not on point or not persuasive.
In the first such case cited by Griffin, Diebel v. S.B. Trucking Co., 262 F.Supp.2d 1319
(M.D. Fla. 2003), the notice of removal made no reference at all to one of the defendants – who
had been served when the notice was filed and who was represented by a different attorney than
the one who filed the notice – and that defendant did not attempt to indicate consent to removal

“any civil action brought in a state court of which the district courts of the United States have
original jurisdiction”.

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within the required thirty-day period. Thus, the Diebel court did not consider the issue of whether
the non-moving defendant had consented to removal.
In Griffin’s second case, Smith v. Health Ctr. of Lake City, Inc., 252 F.Supp.2d 1336 (M.D.
Fla. 2003), the court stated that one defendant’s unsupported statement, in the Notice of Removal,
that the other defendants concurred in the removal was insufficient to satisfy the unanimity rule,
even though counsel for that defendant subsequently came to represent the others. However, the
plaintiff had waived the consent-to-removal issue, id. at 1341, and therefore the court’s
interpretation of the unanimity rule was dicta.
More recently, in an unpublished opinion, the United States Court of Appeals addressed an
analogous situation and came out the other way. In Stone v. Bank of New York Mellon, N.A., 609
Fed. Appx. 979 (11th Cir. 2015), the case was removed by four of five defendants. The fifth
defendant – Prommis Solutions, Inc. (“Prommis”) – did not join in the notice of removal or
otherwise indicate consent within 30 days of being served. Id. at 981. Outside of that time
frame, however, Prommis opposed the plaintiff’s motion to remand. Id. Relying on the First
Circuit’s decision in Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009), the
Stone court declined to adopt a “wooden rule” of adherence to the unanimity requirement and held
that a technical defect related to the unanimity requirement could be cured by opposing a motion
to remand prior to the entry of summary judgment. Id. In the words of the Stone court,
“Although Prommis did not join the notice of removal, it did oppose remand, and therefore the
district court did not err by refusing to remand for a technical defect related to the unanimity rule.”
Id.

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Even though the Stone opinion, as an unpublished decision, 4 is not binding authority, the
Court finds its reasoning persuasive. In addition, the Sixth and Ninth Circuits have held that one
defendant’s timely removal notice containing an averment of the other defendants’ consent and
signed by an attorney of record is sufficient to satisfy the unanimity requirement. See Harper v.
AutoAlliance Int’l, Inc., 392 F.3d 195, 201-02 (6th Cir. 2004) and Proctor v. Vishay
Intertechnology, Inc., 584 F.3d 1208, 1225 (9th Cir. 2009). Based on the holdings in Harper and
Proctor, the statement as to LG Sourcing’s consent in the Notice (which was signed by counsel for
the other two Defendants) satisfied the unanimity requirement. Even if that were not the case,
based on the Eleventh Circuit’s decision in Stone, LG Sourcing’s opposition to the current motion
cures the defect. Accordingly, the Motion to Remand (Doc. 24) is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on June 5, 2018.

4

See 11th Cir. R. 36-2.

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