Ford v. Associated Electric Cooperative, Inc. et al
MEMORANDUM AND ORDER OF REMAND. IT IS HEREBY ORDERED that defendants Associated Electric Cooperative, Inc., Lynn Farnen, Stephen Iwanowicz, and Bobby D. Rhoads' JointMotion to Remand 9 is GRANTED. IT IS FURTHER ORDERED that this case is reman ded to the Circuit Court of Randolph County, Missouri, from which it was removed. IT IS FURTHER ORDERED that all pending motions are denied as moot and without prejudice to be refiled in the proper forum. Signed by District Judge Catherine D. Perry on 11/30/17. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NATHAN SHAIN FORD,
COOPERATIVE, INC., et al.,
Case No. 2:17 CV 71 CDP
MEMORANDUM AND ORDER OF REMAND
Plaintiff Nathan Shain Ford filed this action in a Missouri state court against
five defendants, namely IBEW Local #53, Associated Electric Cooperative, Inc.,
Lynn Farnen, Stephen Iwanowicz, and Bobby D. Rhoads. Defendant IBEW
removed the action to this Court on October 18, 2017, invoking this Court’s federal
question jurisdiction. IBEW avers that, while couched in terms of state law claims,
Ford’s claims against it actually arise under the National Labor Relations Act and
the Labor-Management Relations Act, thereby providing federal subject-matter
jurisdiction over the claims. None of the other defendants joined in or consented to
removal, and they now move to remand the case to state court. Because there is no
unanimity among the defendants to have this case heard in the federal forum, I will
grant the motion to remand.
Ford filed this action in the Circuit Court of Randolph County, Missouri, on
August 28, 2017. Service was effected on defendant Rhoads on September 5, but
the sheriff’s return of service was not filed in the state-court file. Service was
effected on IBEW on September 20 and the return of service was filed September
25. Nothing in the record shows that formal service of process was effected on
either Associated Electric, Farnan, or Iwanowicz, but a letter from their counsel to
Ford’s counsel dated October 3 confirmed that these defendants, as well as
defendant Rhoads, would respond to the state-court petition no later than October
Defendant IBEW filed its Notice of Removal on October 18, 2017. The
Notice does not identify any other defendant nor indicate that any other defendant
consented to the removal of the action to federal court.
Less than one week later, on October 24, defendants Associated Electric,
Farnen, Iwanowicz, and Rhoads entered their appearance in the case and filed this
motion to remand, arguing that IBEW’s removal of the action was procedurally
deficient given IBEW’s failure to obtain their consent as required under 28 U.S.C.
§ 1446(b)(2)(A). They also affirmatively state that they do not consent to IBEW’s
Notice of Removal. In response, IBEW contends that it could not have known that
any other defendant had been served because no return of service or other proof of
service was filed at the time it filed its Notice. IBEW also contends that,
regardless, none of the other defendants had been properly served when it filed its
Notice, and that it therefore was not required to obtain their consent. IBEW does
not respond to the other defendants’ affirmative representation to the Court that
they do not consent to removal.
All defendants in a suit who have been properly joined and served must
consent to removal. 28 U.S.C. § 1446(b)(2)(A). This “unanimity requirement”
serves important interests by “prevent[ing] duplicative litigation and bar[ring] one
defendant from imposing his forum of choice on co-defendants.” Christiansen v.
W. Branch Cmty. Sch. Dist., 674 F.3d 927, 933 (8th Cir. 2012). The failure of one
defendant to consent renders the removal defective. Pritchett v. Cottrell, Inc., 512
F.3d 1057, 1062 (8th Cir. 2008).
It is well-recognized that obtaining the consent of an unserved defendant is
not required to effectuate removal to federal court. Roberts v. Palmer, 354 F.
Supp. 2d 1041, 1044 (E.D. Mo. 2005). Upon being served, however, a previously
unserved defendant has thirty days to unambiguously communicate to the court
that it joins in or consents to removal. Amteco, Inc. v. BWAY Corp., 241 F. Supp.
2d 1028, 1030, 1032 (E.D. Mo. 2003). It may also exercise its right to choose the
state forum by filing a motion to remand. 28 U.S.C. § 1448. By moving to
remand once it appears in the case, an unserved defendant “retains the right to veto
the removal[.]” Sorell v. Garrison Prop. & Cas.. Ins. Co., No. 15-00845-CV-WHFS, 2016 WL 9137638, at *2 (W.D. Mo. Mar. 17, 2016) (internal citations and
quotation marks omitted). Since a defendant’s motion to remand signals that there
is no unanimity among the defendants to the federal forum, the case should be
Here, IBEW argues that it was not required to obtain the consent of any
other defendant when it removed the case to this Court because 1) it was unaware
that any other defendant had been served, since no proof of service had been filed;
and 2) any purported service was improper. Both arguments fail.
Removal statutes must be strictly construed, Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108 (1941), and any doubt about the propriety of removal
must be resolved in favor of remand. Pender v. Bell Asbestos Mines, Ltd., 145 F.
Supp. 2d 1107, 1110 (E.D. Mo. 2001). When a civil action is removed to federal
court, 28 U.S.C. § 1446(b)(2)(A) requires that “all defendants who have been
properly joined and served must join in or consent to the removal of the action.” I
am not aware of any authority – and IBEW cites to none – that establishes that a
removing party’s lack of knowledge of service upon a defendant excuses the
statutory requirement of consent. Nevertheless, regardless of this lack of
knowledge, the other defendants have timely and unambiguously communicated to
this Court that they do not consent to the removal of this action. Because there is
no unanimity among the defendants to this federal forum, I must remand the case
to state court.
To the extent IBEW also argues that none of the other defendants had been
properly served at the time of removal, any reliance on this position is moot.1 The
remaining defendants entered their appearance in this action upon removal and
immediately moved to remand. While 28 U.S.C. § 1448 provides that any
defendant “upon whom process is served after removal” has the right to move to
remand the case, formal service of process is not required if he has already
generally appeared in the action. See Creighton v. Kerr, 87 U.S. 8, 12 (1873) (“A
general appearance waives all question of the service of process.”); Pollard v.
Dwight, 8 U.S. 421, 428-29 (1808) (Defendants who appear in an action “place
themselves precisely in the situation in which they would have stood, had process
been served upon them[.]”); Knox v. Summers, 7 U.S. 496, 497 (1806). Thus, an
unserved defendant retains the right to veto the removal by moving to remand once
it makes an appearance in the case. Sorell, 2016 WL 9137638, at *2 (W.D. Mo.
Mar. 17, 2016). Accordingly, whether or not service upon these defendants was
proper in the state forum, the question is moot given their appearance in this Court
IBEW appears to base its argument of improper service only upon the fact that no proof of
service was ever filed in state court. Service of process, however, is not rendered invalid by a
defect in the return or in the timing of its filing. Christianson v. Goucher, 414 S.W.3d 584, 58990 (Mo. Ct. App. 2013).
Accordingly, although IBEW claims that it was not required to obtain the
consent of the other named defendants prior to removal because of the lack of
service and/or improper service, there is no dispute that these defendants entered
an appearance in the case immediately upon removal, whereupon they sought
remand and affirmatively represented to the Court that they do not consent to
removal. Given the lack of unanimity among the defendants, and the caveat that I
must resolve all doubts in favor of remand, I will remand this matter to state court.
IT IS HEREBY ORDERED that defendants Associated Electric
Cooperative, Inc., Lynn Farnen, Stephen Iwanowicz, and Bobby D. Rhoads’ Joint
Motion to Remand  is GRANTED.
IT IS FURTHER ORDERED that this case is remanded to the Circuit
Court of Randolph County, Missouri, from which it was removed.
IT IS FURTHER ORDERED that all pending motions are denied as moot
and without prejudice to be refiled in the proper forum.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 30th day of November, 2017.
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