Alston v. Wells Fargo Bank, National Association et al

Filing 28

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 6/29/2017. (kns, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

SABRINA ALSTON,
Plaintiff,
v.
Civil Action No. TDC-17-1085

WELLS FARGO BANK,
NATIONAL ASSOCIATION and
LPS FIELD SERVICES, INC.,
Defendants.

MEMORANDUM OPINION
Plaintiff Sabrina Alston filed suit against Defendants Wells Fargo Bank ("Wells Fargo")
and LPS Field Services, Inc. ("LPS") in the Circuit Court for Prince George's County, Maryland
alleging a violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C.
1692p (2012), and seven state law causes of action.

SS

1692-

On the basis of the FDCP A claim, LPS

removed the case to federal court, but without having first obtained the consent of Wells Fargo.
Pending before the Court is Alston's Motion to Remand. Having reviewed the Motion and the
briefs, the Court finds no hearing necessary. See D. Md. Local R. 105.6 (2016). For the reasons
set forth below, the Motion is GRANTED, and this case is REMANDED to the state court.
BACKGROUND
On March 17, 2017, Wells Fargo was served with a summons and the Complaint.

On

March 20, 2017, LPS was served. On April 11, 2017, Wells Fargo filed an Answer to Alston's
Complaint in state court. On April 19,2017, LPS removed the case to this Court on the basis of
federal question jurisdiction.

See 28 U.S.C.

S

1441(a) (2012) (allowing removal of "any civil

action brought in a State court of which the district courts of the United States have original
jurisdiction.").

A defendantremoving

solely on the basis of ~ 1441(a) has 30 days from the date

it was served to remove the case to state court. 28 U.S.C. ~ 1446(b)(2)(B).

LPS thus filed its

Notice of Removal on the last day of this 30-day period.
Under what is commonly referred to as the unanimity requirement, "(w]hen a civil action
is removed solely under ~ 1441(a), 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); see Mayo v.

Bd. of Educ. of Prince George's Cty., 713 F.3d 735, 741 (4th Cir. 2013).

LPS's notice of

removal contained no mention of whether Wells Fargo had consented to removal. On April 20,
2017, this Court ordered LPS to show cause as to why removal was proper.

In its response to

that Order, LPS stated that Wells Fargo consented to removal, but did not state when or how.
On May 18, 2017, Alston filed a Motion to Remand in which she asserted that the
removal was defective because LPS had not obtained Wells Fargo's consent at the time it filed
the Notice of Removal.

In its Opposition to the Motion, LPS admits that it did not have Wells

Fargo's consent at the time of removal, explaining that counsel for LPS tried but failed to reach
counsel for Wells Fargo prior to filing the Notice, but asserts that LPS obtained Wells Fargo's
consent on April 21, 2017, two days after the Notice was filed. In its Opposition to the Motion,
Wells Fargo states that it first reviewed the Notice of Removal on April 20, 2017, the day after it
was filed by LPS, and that it consents to removal.
DISCUSSION
The central facts are not in dispute. At the time that LPS removed this case, it did not
have Wells Fargo's consent to the removal. Alston argues that LPS's Notice of Removal is
therefore fatally defective, because under 28 U.S.C. ~ 1446(b)(2), LPS was required to have

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Wells Fargo's consent at the time of removal. LPS counters that the statute contains no express
timing requirement for obtaining the consent of co-defendants and asserts that because Wells
Fargo belatedly consented, the Notice of Removal is sound. Alternatively, LPS asserts that even
if its Notice was defective, that defect is not a jurisdictional bar to removal, so the Court should
accept Wells Fargo's belated consent as having cured that defect.
I.

Consent to Removal
Courts are required to construe removal statutes narrowly, Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09 (1941), because "the removal of cases from state to federal court
raises significant federalism concerns,"

Barbour v. Int'l Union, 640 F.3d 599, 605 (4th Cir.

2011). Removal of a case is subject to specific time limits. "Each defendant shall have 30 days
after receipt by or service on that defendant of the initial pleading or summons . . . to file the
notice of removal."

28 U.S.C. ~ 1446(b)(2)(B).

This provision, enacted as part of the Federal

Courts Jurisdiction and Venue Clarification Act of 2011 (the "JVCA"), Pub. L. No. 112-63, ~
103, 125 Stat. 758, 760, gives each defendant in an action 30 days from its own date of service to
initiate removal, codifying the "Last-Served Defendant Rule" that had been adopted by some,
but not all, circuit courts in the absence of guiding statutory language before the JVCA.

A

defendant who has failed to remove during its own 30-day period may join in or consent to a
later-served defendant's timely notice of removal. 28 U.S.C. ~ 1446(b)(2)(C) ("If defendants are
served at different times, and a later-served defendant files a notice of removal, any earlierserved defendant may consent to the removal even though that earlier-served defendant did not
previously initiate or consent to removal.").

Here, by the time that LPS filed its Notice of

Removal on April 19,2017, Wells Fargo's own 30-day period for filing a Notice of Removal had

3

expired, but it could have consented to LPS's Notice of Removal.

See id

By the time Wells

Fargo had provided consent on April 21, LPS's 30-day period to remove had expired as well.
Section 1446(b )(2)(C), however, does not explicitly impose a timing requirement for
obtaining the consent of co-defendants to remove. LPS reads this omission as implying an openended deadline for satisfying the unanimity requirement.

But this reading chafes against the

language in the broader statute, which suggests that the deadlines to remove and to secure
consent are the same. Under

S

1446(b)(2)(B), "each defendant shall have 30 days after receipt

by or service on that defendant of the initial pleadings or summons . . . to file the notice of
removal."

All defendants therefore have 30 days to make a removal decision.

Section

1446(b)(2)(A) states that "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."

(emphasis added).

This temporal language suggests that all defendants must

consent to removal, if not within their own 30-day window under

S 1446(b)(2)(B),

then when the

case is actually removed, not at some undetermined point afterwards.
This reading of

S

1446 is consistent with the JVCA's legislative history.

Although the

JVCA was meant, in part, to ensure "equal treatment of all defendants in their ability to obtain
federal jurisdiction

over the case against them," that goal was to be reached

"without

undermining the Federal interest in ensuring that defendants act with reasonable promptness in
invoking Federal jurisdiction."

H.R. Rep. No. 112-10, at 13, 14 (2011).

Considering the

removal statute's unanimity requirement and the legislative concern for encouraging prompt
action to remove, it would not be reasonable to read the statute to permit an open-ended consent
deadline, as LPS suggests, that allows for an indefinite period during which the district court's
statutory authority to hear the case remains unsettled.

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Indeed, courts of appeals that followed the Last-Served Defendant Rule, now codified by
the JVCA, fashioned consent-timing rules consistent with this interpretation of the statutory
language. These circuits required that "the later-served defendant receive the consent of all thenserved defendants at the time hefiles his notice of removal." Bailey v. Janssen Pharm., Inc., 536
F.3d 1202, 1207 (lith

Cir. 2008) (emphasis added).

See Marano Enters. of Kan. v. Z-Teca

Rests., L.P., 254 F.3d 753, 757 (8th Cir. 2001) ("[T]he later-served defendants in this case had
thirty days from the date of service on them to file a notice of removal with the unanimous
consent of their codefendants ... " ) (emphasis added); Brierly v. Alusuisse Flexible Packaging,
Inc., 184 F.3d 527, 533 (6th Cir. 1999) ("[A] later-served defendant has 30 days from the date of
service to remove a case to federal district court, with the consent of the remaining defendants.")
(emphasis added).
Since the passage of the JVCA, no circuit court has directly addressed the required timing
of consent. However, in cases detailing the proper form of consent, courts have emphasized the
importance of obtaining timely consent from co-defendants.

In Mayo, the United States Court of

Appeals for the Fourth Circuit resolved whether a removing defendant could, in the absence of
any filing by the non-removing defendants, satisfy the unanimity requirement by stating in the
notice of removal that the consent of the non-removing defendants had been obtained. 713 F.3d
at 742. In holding that such representations of consent were permissible, the Court specifically
approved of "a notice of removal . . . representing unambiguously that the other defendants
consent to the removal."

Id. In Mayo, the Fourth Circuit did not entertain the possibility that a

representation of consent, much less consent itself, could come after a timely notice of removal,
but instead assumed that consent must be stated at the time a notice of removal was filed, if not
within 30 days of the relevant co-defendant's

service. The United States Court of Appeals for

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the Eighth Circuit has similarly implied the existence of a consent deadline.

Griffioen v. Cedar

Rapids and Iowa City Ry. Co., 785 F.3d 1182, 1188 (8th Cir. 2015) (holding that "a defendant's
timely removal notice indicating consent on behalf of a codefendant ...

sufficiently establishes

that codefendant's consent to removal.").
Several district courts within the Fourth Circuit have concluded that consent to remove
must be obtained either at the time the notice of removal is due or within 30 days of when the
consenting defendant was served.

See, e.g., Moore v. Svehlak, No. ELH-12-2727, 2013 WL

3683838, at *14 (D. Md. July 11, 2013) (finding that "(i]f a defendant's guaranteed thirty-day
time to file a notice of removal under

S

1441(b)(2)(B) has expired, the rule of unanimity under

S

1441(b)(2)(C) would require a later-served defendant to obtain consent from the earlier-served
defendant as of the time the later-served defendant files its notice of removal"); Simon v. Regal
Inv. Advisors LLC, No. 3:16CV00090, 2017 WL 1628436 at *5 (W.D. Va. Apr. 28, 2017)
(holding that "a later-served defendant has thirty days from the time he is served with the initial
pleading to either consent to an existing notice of removal or file his own notice of removal with
the consent of the earlier-served defendants");
Quality Built, LLC, No. 3:16-cv-02022-CMC,

The Gates at Williams-Brice Condo. Ass 'n v.
2016 WL 4646258 at *7 (D.S.C. Sept. 9, 2016)

(holding that "the deadline for indicating consent of co-defendants is the later of when the notice
of removal is due or within thirty days of when the consenting defendant was first served").
Upon consideration of the language of the removal statute, the legislative history, and the
relevant case law, and cognizant of the Supreme Court's directive to construe the applicable
removal statute narrowly, this Court concludes that there must be a deadline for consent.

The

absence of such a deadline would lead to untenable uncertainty, allowing co-defendants to take a
wait-and-see approach before making a consent decision that could dictate whether the case can

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remain in federal court.

This Court therefore concludes that under 28 U.S.C.

S

1446(b)(2), a

removing defendant must secure the consent of other served defendants by the time of the filing
of the notice of removal, or within 30 days of when the consenting defendant was first served,
whichever is later.

Here, where LPS admittedly filed its Notice of Removal without having

obtained Wells Fargo's consent, and Wells Fargo did not provide its consent until after the
expiration of its own 30-day deadline to file a notice of removal, LPS failed to satisfy the
unanimity requirement. Removal was therefore improper.
II.

Opportunity to Cure
LPS argues that even if the Notice of Removal was defective, this Court should excuse

the defect based on Wells Fargo's later consent.

The Fourth Circuit has not resolved whether

district courts may allow a removing defendant to cure such a procedurally defective notice of
removal.

At least four district courts within the Fourth Circuit have held that they do not.

Simon, 2017 WL 1628436, at *7; The Gates, 2016 WL 4646258, at *8; Stevens v. Thornsbury,
No. 2:13-cv-31719, 2014 WL 3962478, at *3 (S.D.W. Va. Aug. 13,2014);

Easter-Greene

v.

Verizon Maryland, LLC, No. MJG-14-1040, 2014 WL 3723228 at *7 (D. Md. July 23, 2014); see
also Hurt v. District of Columbia, 869 F. Supp. 2d 84, 86 (D.D.C. 2012).

However, several

circuits have held that district courts have discretion to allow defendants to cure procedural
removal defects. See Stone v. Bank of New York Mellon, N.A., 609 F. App'x 979, 981 (lith Cir.
2015); Destfino v. Reiswig, 630 F.3d 952, 956-57 (9th Cir. 2011); Esposito v. Home Depot
U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009).
Based on the Supreme Court's admonition that courts should construe removal statutes
narrowly, Shamrock, 313 U.S. at 108-09, and the principle that "[a]ll doubts about removal
should be resolved in favor of remand," this Court concludes that the defect is not curable. Hurt,

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869 F. Supp. 2d at 86; see Simon, 2017 WL 1628436, at *7; The Gates, 2016 WL 4646258, at
*8.

To excuse untimely consent would be to "substantially

established in

S

1446(b).

Easter-Greene,

eviscerate"

2014 WL 3723228 at *7.

the time limits

Remand is therefore

necessary.
The Court notes that even if it had discretion to allow LPS to cure its defective Notice of
Removal, it would not do so. Both Defendants are sophisticated business entities who have
offered no persuasive

reason to excuse the failure to secure or provide timely consent.

Moreover, considerations of federal-state comity favor remand.

Seven of Alston's eight causes

of action are state law claims. Alston has only one federal claim, which serves as the basis for
this Court's jurisdiction, and LPS and Wells Fargo have informed the Court that they plan to
move for dismissal of that claim. With Defendants themselves challenging the cause of action
that is the basis for removal, and the consequent possibility that this Court could find itself in
short order with only state law claims, there is no compelling reason to excuse LPS' s failure to
obtain the timely consent of Wells Fargo to removal of this action.
CONCLUSION
Accordingly,

the plaintiffs

Motion to Remand

IS

GRANTED.

The case will be

REMANDED to state court. A separate Order shall issue.

Date: June 29,2017
~

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THEODORE.
UANG
United States Distnct Judge