White v Liberty Mutual Fire Insurance Company et al

Filing 22

MEMORANDUM AND ORDER granting 16 Motion to Remand to State Court. Signed by Judge Marvin J. Garbis on 5/2/2016. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KELLY LYNN WHITE

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Plaintiff

vs.

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LIBERTY MUTUAL FIRE INSURANCE
COMPANY, et al.

CIVIL ACTION NO. MJG-16-579

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Defendants
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MEMORANDUM AND ORDER

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The Court has before it Plaintiff's Motion to Remand [ECF
No. 16] and the materials submitted relating thereto.

The Court

finds that a hearing is unnecessary.
In the instant case:




On January 28, Plaintiff served the Maryland Insurance
Administration.



On or about February 9, Amica received the service of
process.



It appears that Liberty received the service of
process on or about the same date.2


1

On January 8,1 Plaintiff filed the Complaint in the
Circuit Court for Baltimore City asserting claims
against Defendants Liberty Mutual Fire Insurance
Company ("Liberty") and Amica Mutual Insurance Company
("Amica")

On February 29, Amica filed its Notice of Removal [ECF
No. 1], stating therein that notice of its filing

All dates referred to herein are in the year 2016.
Defendants present no contention that Liberty received
process substantially later than February 9 and certainly do not
contend that it was within 30 days of Liberty's March 29 filing
of its Answer.
2

"will be provided to Plaintiff and Co-Defendant
[Liberty]."


On March 29, Liberty filed its Answer [ECF No. 14].



Also on March 29, Plaintiff filed the instant motion
seeking remand.



On April 4, Liberty filed a Line of Consent [ECF No.
17] stating that it consented to removal and that its
filing of the Answer had indicated its consent.

The instant motion presents the question of when a
defendant consenting to removal by a co-defendant must manifest
that consent.

Plaintiff contends that Liberty's consent to

removal had to be filed within 30 days of effective service of
process on Liberty.

Therefore, a consent filed on April 4 or

March 29 (if the Answer constituted consent) would not be timely
as to Amica's notice of removal.

Defendants contend that

Liberty's consent would be deemed timely if it were not
unreasonably delayed.
The removal statute, as enacted in the Federal Courts
Jurisdiction and Venue Clarification Act of 2011 (the “JVCA”),
Pub. L. No. 112-63, 125 Stat. 758, does not expressly address
the time for filing a consent to removal.

Title 28 U.S.C. §

1446(b) states, in pertinent part:
(1) 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
[Complaint]. . . .

2

(2)(A) When a civil action is removed solely
under section 1441(a), all defendants who
have been properly joined and served must
join in or consent to the removal of the
action.
(2)(B) Each defendant shall have 30 days
after receipt by or service on that
defendant of the [Complaint] initial
pleading or summons described in paragraph
(1) to file the notice of removal.
(2)(C) If defendants are served at different
times, and a later-served defendant files a
notice of removal, any earlier-served
defendant may consent to the removal even
though that earlier-served defendant did not
previously initiate or consent to removal.
The Court finds persuasive the rationale of Judge
Hollander's Memorandum Opinion in Moore v. Svehlak, Civil Action
No. ELH-12-2727, 2013 WL 3683838 at *11-15 (D. Md. July 11,
2013).

A defendant in a multi-defendant case must file a notice

of removal, with the consent of all served co-defendants, within
30 days from receipt or service of process.

A later served co-

defendant must, within 30 days of service, join an existing
removal petition or can file a notice of removal with the
consent of all then-served co-defendants.
In the instant case, Amica did not file a notice of removal
with Liberty's consent within 30 days of service on Amica.

And,

there is no indication that, even if Liberty had been served
later than Amica, Liberty filed its consent to Amica's removal
within 30 days of service on Liberty.

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For the foregoing reasons:
1.

Plaintiff's Motion to Remand [ECF No. 16] is
GRANTED.

2.

By separate Order, the case shall be remanded.

SO ORDERED, on Monday, May 2, 2016.
/s/__________
Marvin J. Garbis
United States District Judge

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