Viking Inc v. NBD International Inc et al
Filing
61
OPINION AND ORDER GRANTING 20 MOTION to Remand to State Court by Plaintiff Viking Inc. This case is REMANDED back to the Whitley Superior Court of Indiana. Signed by Judge Rudy Lozano on 9/8/16. (cc: Clerk, Whitley Superior Court, with Certified Copy of Order and Docket Sheet).(cer)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VIKING, INC.,
Plaintiff,
vs.
NBD INTERNATIONAL, INC. and
SELECTIVE INSURANCE COMPANY
OF AMERICA,
Defendants.
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CAUSE NO. 1:16-CV-25
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to
Remand, filed by the plaintiff, Viking, Inc., on February 19, 2016
(DE #20).
For the reasons set forth below, the Motion to Remand is
GRANTED and this case is REMANDED back to the Whitley Superior
Court of Indiana.
BACKGROUND
On January 6, 2016, the plaintiff, Viking, Inc. (“Viking”)
filed its complaint against NBD International, Inc. (“NBD”) and
Selective Insurance Company of America (“Selective”) (collectively,
“Defendants”) in the Whitley Superior Court of Indiana.
(DE #4.)
The case was assigned cause number 92D01-1601-PL-000006.
(Id.)
Viking’s claims arise from a “catastrophic fire loss . . . at its
70,000 square foot headquarters and manufacturing facility,” and
the complaint alleges personal property and business losses due to
Defendants’
negligence
and
breach
of
contracts.
(DE
#4.)
Selective was served with a copy of the summons and complaint on
January 11, 2016.
(See DE #1, p. 1 & DE #22, p. 1.)
NBD was
served with a copy of the summons and complaint on January 13,
2016.
(See DE #11, p. 1.)
On January 22, 2016, Selective filed
its notice of removal based on diversity jurisdiction.
(DE #1.)
In it, Selective states that NBD “has consented to the removal of
this action as evidenced by Exhibit B.”
(Id. at 3.)
Exhibit B is
a copy of an email from Jennifer Kalas (“Attorney Kalas”), counsel
for Selective, to Adam D. Fuller (“Attorney Fuller”), counsel for
NBD,1 asking Attorney Fuller to confirm that NBD consents to the
removal.
(DE #1-3.)
In that email, Attorney Fuller states that
NBD “consents to the removal.”
(Id.)
The notice of removal
itself, however, is only signed by Attorney Kalas.
(DE #1, p. 4.)
On February 19, 2016, Viking filed the instant motion to
remand, arguing that the notice of removal is defective because the
email correspondence does not meet the requirements for formalizing
consent to remove in the Seventh Circuit.
(DE #20.)
On February
22, 2016, Selective filed an amended notice of removal, this time
attaching two emails as exhibits in support of its contention that
1
At the time the notice of removal was filed, Attorney Fuller had not
entered an appearance in the case. He did not do so until March 4, 2016. (DE
#32.)
2
NBD has consented to removal.
(DE #22; see also DE #22-2 & DE #22-
3.) The amended notice of removal is signed by both Attorney Kalas
and Lindsay Hurni Lepley (“Attorney Lepley”), additional counsel
(DE #22, p. 4.)2
for NBD.
Selective filed its response in
opposition to Viking’s motion to remand on March 9, 2016, arguing
that the motion should be denied because Selective had obtained
written consent from NBD prior to removal in the form of an email,
which was attached and incorporated into Selective’s notice of
removal.
(DE #41.)
Selective also argues that the amended notice
of removal, which has been signed by both Defendants, cures any
alleged defect.
(Id.)
On March 16, 2016, Viking filed its reply,
arguing that the notice of removal is defective and that Selective
has not overcome the procedural failure.
(DE #43.)
The motion is
thus ripe for adjudication.
DISCUSSION
A civil case brought in state court may be removed to a
district court which has original jurisdiction.
2
28 U.S.C. §
On March 9, 2016, NBD filed a motion to transfer pursuant to 28
U.S.C. section 1404(a) based upon its assertion that a forum selection clause,
designating the courts of Summit County, Ohio as the proper forum for this
action, exists in the work authorization contract at issue between NBD and
Viking. (DE #38.) NBD notes that it “specifically reserves the right to file
a motion under Rule 12(B) of the Indiana Rules of Trial Procedure, or to
convert this Motion to one under Rule 12(B), in the event that this Motion is
remanded to state court, where the procedure for enforcing a forum-selection
clause is properly brought under Rules 12(B) and 75.” (Id. at 2, n. 1.)
Because the instant Opinion and Order deals only with the determination of the
motion to remand, the Court takes no position on the motion to transfer.
3
1441(a).
Defendants who wish to remove a civil action from state
court to federal court must file a “notice of removal signed
pursuant to Rule 11 of the Federal Rules of Civil Procedure and
containing a short and plain statement of the grounds for removal
. . . .”
28 U.S.C. § 1446(a) (emphasis added).
The requirements
for removal are as follows:
The notice of removal of a civil action or
proceeding shall be filed within 30 days after
the receipt by the defendant, through service
or otherwise, of a copy of the initial
pleading setting forth the claim for relief
upon which such action or proceeding is based,
or within 30 days after the service of summons
upon the defendant if such initial pleading
has then been filed in court and is not
required to be served on the defendant,
whichever period is shorter.
28 U.S.C. § 1446(b)(1).
While the thirty day deadline is not
jurisdictional, it “is a strictly construed rule of procedure, and
failure to comply with this rule is ground for remand, absent
waiver.”
Macri v. M & M Contractors, Inc., 897 F. Supp. 381, 383-
84 (N.D. Ind. 1995) (citing N. Ill. Gas Co. v. Airco, Inc., 676
F.2d 270, 273 (7th Cir. 1982)).
In general, “all defendants who
have been properly joined and served must join in or consent to the
removal of the action.” 28 U.S.C. § 1446(b)(2)(A). In the Seventh
Circuit, the requirement of timely written consent is construed
strictly.
See Shaw v. Dow Brands, Inc., 994 F.2d 364, 368 (7th
Cir. 1993), overruled on other grounds by Meridian Sec. Ins. Co. v.
Sadowski, 441 F.3d 536, 540 (7th Cir. 2006).
4
As the Seventh
Circuit has stated, “[a] petition for removal fails unless all
defendants join it.
. . . .”
To ‘join’ a motion is to support it in writing
Roe v. O’Donohue, 38 F.3d 298, 301 (7th Cir. 1994)
(internal citations omitted), abrogated on other grounds by Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
Several years later, the court expanded upon that notion when
determining that a removal notice was defective because, even
though the defendant had noted that “all properly served defendants
agreed to the removal, . . . not all of these defendants joined in
the petition because not all of them signed it.”
Gossmeyer v.
McDonald, 128 F.3d 481, 489 (7th Cir. 1997); see also Boruff v.
Transervice, Inc., No. 2:10-CV-322, 2011 WL 1296675, *2 (N.D. Ind.
March 30, 2011) (“Although [removing defendant’s] notice of removal
represents that ‘[co-defendant] consents to the removal,’ this
statement is insufficient to meet the Seventh Circuit’s requirement
of express, written consent.”)
A party who believes removal was improper may file a motion to
remand pursuant to 28 U.S.C. section 1447.
Unless the defect
relates to the lack of subject matter jurisdiction, the motion must
be made within thirty days of the filing of the notice of removal.
28 U.S.C. § 14479(c).
As to amendments:
[w]ithin the thirty-day time limit for removal
imposed by § 1446(b), a removal petition may
be freely amended to cure any defects. Even
after the thirty-day time limit, defects as to
allegations of jurisdiction may be cured by
amendment in accordance with 28 U.S.C. § 1653.
5
Defects in removal procedures may only be
cured within the statutory time period,
however, unless they are waived.
Macri, 897 F. Supp. at 384 (internal citations omitted).
The
Seventh Circuit has allowed untimely amendments to cure defective
notices of removal in certain circumstances, “[b]ut in each of
these cases, multiple factors – often including the fact that the
unconsenting
party’s
consent
was
not
required
for
removal
supported the Court’s decision not to remand the case.”
–
Boruff,
2011 WL 1296675 at *4-5 (collecting cases and finding that the
defendant’s amended notice of removal was insufficient to avoid
remand under relevant Seventh Circuit precedent).
Here, Selective was served with a copy of a summons and
complaint on January 11, 2016, while NBD was served with the same
two days later. The initial notice of removal was filed on January
22, 2016, within the thirty day time frame.
However, the amended
notice of removal was not filed until February 22, 2016, which was
well beyond the deadline. Viking argues that the initial notice is
defective because the email attached to the notice indicating that
NBD “consents to the removal” does not meet the Seventh Circuit’s
strict requirement of express, written consent. Viking also states
that there is no reason an amendment to the notice of removal filed
beyond
the
thirty
day
removal
period
should
prevent
remand.
Selective, on the other hand, argues that the initial notice of
removal adequately evidenced NBD’s actual consent because the email
6
was attached to and incorporated into the notice.
Furthermore,
according to Selective, the amended notice of removal is officially
signed by NBD via Attorney Lepley, and it contains an additional
email evidencing NBD’s prior consent.
In its response brief,
Selective also attaches a declaration of Attorney Fuller stating
that he had authority from NBD to consent to the removal at the
time the initial notice was filed.
(See DE #41-1.)
According to
Selective, these filings, collectively, “certainly comply” with the
Seventh Circuit’s requirements pertaining to removal.
The Court agrees with Viking that the initial notice of
removal is defective.
The procedural requirements of removal in
the Seventh Circuit are applied quite strictly, and, as Gossmeyer
makes clear, all served defendants must “support the petition in
writing, i.e. sign it.”
Gossmeyer, 128 F.3d at 489 (noting that
even though the removal petition indicated that all properly served
defendants had agreed to remove the case, “not all of these
defendants joined in the petition because not all of them signed
it”).
An unauthenticated email attached to the notice of removal
from an attorney who had not yet appeared in the action on behalf
of the non-removing defendant3 is simply insufficient to establish
proper consent.
See Komacko v. Am. Erectors, Inc., No. 2:12-CV-
3
Attorney Fuller did not request to appear in this action until March
4, 2016, which is well beyond the thirty day removal deadline and over a month
after the initial notice of removal was filed. His request to appear was
granted the same day it was filed.
7
495, 2013 WL 3233229, *2 (N.D. Ind. June 25, 2013) (the nonremoving defendant’s “email and letter consenting to removal is
insufficient to meet the Seventh Circuit’s strict requirement of
express, written consent, and the later filed notice of consent was
untimely”).
While Selective argues that amendments to the removal
statute and a recent Supreme Court case, Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S.Ct. 547 (2014), have loosened
the
Seventh
Circuit
requirements
related
to
removal
consent
procedures, the Court does not find this argument persuasive.
In
Dart, the Court addressed the “single question” of whether, in a
class
action
case,
“[t]o
assert
the
amount
in
controversy
adequately in the removal notice, does it suffice to allege the
requisite amount plausibly, or must the defendant incorporate into
the notice of removal evidence supporting the allegation?”
135 S. Ct. at 551.
Dart,
Holding that the jurisdictional amount in a
notice of removal could be described in “short and plain” terms and
did not need to contain evidentiary submissions unless challenged,
the Supreme Court focused on the narrow issue of the amount in
controversy and did not address other procedural requirements of
the removal statute.
Id. at 554.
In fact, the Supreme Court
specifically declined to decide whether the presumption against
removal in “mine-run diversity cases” was proper in general because
the case before it was a class action, and it is clear that no such
“antiremoval presumption” exists when the Class Action Fairness Act
8
is at play.
Id.
Selective’s request that this Court extend the
reasoning regarding the jurisdictional amount in Dart to questions
of consent procedures in run of the mill diversity cases (such as
the instant one) is at odds with current Seventh Circuit precedent.
See e.g. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 758
(7th Cir. 2009) (“The party seeking removal has the burden of
establishing
federal
jurisdiction,
and
federal
courts
should
interpret the removal statute narrowly, resolving any doubt in
favor of the plaintiff’s choice of forum in state court.”);
Gossmeyer, 128 F.3d at 489 (removal petition is deficient if not
signed by all served defendants). As Viking points out, the notice
pleading rationale in Dart is perfectly logical in the context of
damages which are often highly fact-sensitive and may be difficult
to establish at the outset of a case; however, the analysis makes
little sense when applied to the separate matter of unanimity of
consent which requires a simple, easily obtained signature.
The
procedural requirement of a signature is certainly not onerous in
a
case
where,
as
here,
the
defendants
have
admitted
to
communicating prior to the filing of the notice of removal.
Finally, the Court declines to find that Selective’s amended
notice of removal, which was filed outside of the thirty day
deadline, is sufficient to avoid remand. While the Seventh Circuit
has permitted belated amendments to cure defective notices of
removal
in
some
circumstances,
9
the
factors
supporting
those
decisions are not present here.
See e.g. N. Ill. Gas Co., 676 F.2d
at 274 (accepting untimely amendment because the state court record
“plainly disclosed” that the non-removing defendant was a “nominal
party”); Boruff, 2011 WL 1296675 at *5 (distinguishing cases where
“multiple factors” such as dismissal prior to removal, nominal
party status, and waiver via a failure to object supported the
decision not to remand). In this case, NBD’s consent to remove was
required, Viking has objected to the removal, and Selective offers
no compelling reason why NBD’s signature was omitted from the
initial petition and could not have been submitted within the
thirty day time frame; as far as the Court can ascertain, it simply
chose not to include NBD’s signature on the notice of removal and
to rely on an unauthenticated email instead.
See Boruff, 2011 WL
1296675 at *6 (the court was “aware of no reason” proper written
consent could not have been submitted at the time of the filing of
the notice of removal considering that the removing defendant had
obtained verbal consent from the non-removing defendant prior to
that time); see also Komacko, 2013 WL 3233229 at *2.
The time
limit is a “strictly construed rule of procedure,” and a plaintiff
has a “right to remand if the defendant did not take the right
steps when removing.”
1995).
Macri, 897 F. Supp. 381, 383-84 (N.D. Ind.
Because Selective did not take those proper steps in a
timely manner, the Court concludes that remand is appropriate in
this case.
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CONCLUSION
For the reasons set forth above, the Motion to Remand (DE #20)
is GRANTED and this case is REMANDED back to the Whitley Superior
Court of Indiana.
DATED: September 8, 2016
/s/ RUDY LOZANO, Judge
United States District Court
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