Acosta-Felton v. Grinkey et al

Filing 7

ORDER ENTERED: Plaintiff's motion 5 for remand is denied. This matter is returned to the clerk of the court for random reassignment pursuant to D. Kan. Rule. 40.1. Signed by Senior District Judge Sam A. Crow on 6/21/2011. (Mailed to pro se party Rey Acosta-Felton by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

REY ACOSTA-FELTON,
Plaintiff,
v.

CASE NO. 11-3103-SAC

GRINKEY, et al.,
Defendants.

O R D E R
Plaintiff, a prisoner now incarcerated in a Kansas Correctional
Facility, initiated this action by filing his complaint in Riley
County District Court, naming various Riley County law enforcement
officers as defendants. Defendants removed the case to this court
pursuant to 28 U.S.C. §§ 1331 and 1441.

Plaintiff seeks remand of

this matter back to the state district court.

For the reasons set

forth below, the court denies plaintiff’s motion.
Plaintiff filed his complaint in the state district court on
November 29, 2010, asserting jurisdiction under 42 U.S.C. §§ 1983,
1985(3), 1986, and 1988.

He seeks damages based on defendants’

alleged participation in subjecting plaintiff to cruel and unusual
punishment in October 2009 at the Riley County Jail.
Counsel for defendants Grienke, Kennedy, Miller, and Myles
removed the case to this court by filing a petition for removal on
May 24, 2011, within 30 days after these four defendants were served
with summons on May 4, 2011.

See 28 U.S.C. § 1446(b)(petition for

removal must be filed within 30 days of service).

Defendants

maintain this court has original jurisdiction of this matter under

28 U.S.C. § 1331, in that plaintiff’s claims arise under federal
law.
In seeking remand of this action to the state court, plaintiff
claims the petition for remand is defective because each defendant
failed to independently give their written consent and intent to
join the removal.

Having reviewed the record, the court finds no

such defect in the notice of removal.
Plaintiff correctly notes that all defendants are generally
required to join in the notice of removal.

See Akin v. Ashland

Chemical Co., 156 F.3d 1030, 1034 (10th Cir.1998), cert. denied, 526
U.S. 1112 (1999).

“This requirement, that all defendants served at

the time of filing must join in the notice of removal, is generally
referred to as the unanimity rule.”
Cas.

Co.,

omitted).

727

F.Supp.2d

1243,

Tresco, Inc. v. Continental

1247-48

(D.N.M.2010)(citation

“The failure to join all proper defendants renders the

removal petition procedurally defective.”

Henderson v. Holmes, 920

F.Supp. 1184, 1186 (D.Kan.1996)(citations omitted).

A notice of

removal stating that all defendants consent to removal is inadequate
without

a

sufficient

showing

to

establish

each

co-defendant’s

independent and unambiguous notice of consent and intent to join in
removal.

Wakefield v. Olcott, 983 F.Supp. 1018, 1021 (D.Kan.1997).

In the present case, however, the notice of removal was signed
by counsel as representing all four defendants who had been served
with process,1 and the notice clearly indicated that counsel was

1

The notice of removal does not include defendants Fine and
Bailey who have not yet been served. Joinder of these two unserved
defendants is not required by the unanimity rule. See Pullman Co.
v. Jenkins, 305 U.S. 534, 540 (1939)(no joinder required of a
defendant who was not yet served or had not entered an appearance
when removal petition is filed).
2

signing the notice on behalf of each of these four defendants. Thus
the notice of removal was signed by a person with authority to act
on behalf of all served defendants and to indicate each defendant’s
consent to the removal.
F.3d

1057,

1062

(8th

See e.g. Pritchett v. Cottrell, Inc., 512
Cir.2008)(“[E]ach

defendant

need

not

necessarily sign the notice of removal, [but] there must...be some
timely filed written indication from each served defendant, or from
some person with authority to act on the defendant’s behalf,
indicating

that

the

defendant

has

actually

consented

to

the

removal)(internal quotation marks and citations omitted); Nixon v.
Wheatley, 368 F.Supp.2d 635, 639 (E.D.Tex.2005)(remand on the basis
of lack of consent not appropriate where counsel represented both
defendants and had authority to remove on their behalf), appeal
dismissed, 203 Fed.Appx. 674 (5th Cir.2006), cert. denied, 550 U.S.
935 (2007).
Finding no defect in defendants’ consent to the notice of
removal, the court denies plaintiff’s motion for remand.
IT IS THEREFORE ORDERED that plaintiff’s motion for remand
(Doc. 5) is denied, and that this matter is returned to the clerk of
the court for random reassignment pursuant to D.Kan. Rule 40.1.
IT IS SO ORDERED.
DATED:

This 21st day of June 2011 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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