Nichols v. Adena Health System et al

Filing 34

ORDER granting 20 Motion to Remand to State Court. This case is remanded to the Chillicothe, Ohio Municipal Court. Signed by Magistrate Judge Terence P. Kemp on 6/8/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Ronald A. Nichols,

:

Plaintiff,

:

v.

:

Case No. 2:17-cv-187

:
Adena Health System, et al.,
Defendants.

Magistrate Judge Kemp
:

ORDER
This case is before the Court to consider a supplemental
filing made concerning the Plaintiff’s motion to remand to state
court.

Based on that filing, the motion will be granted.

The

explanation for the Court’s decision begins with reference to a
prior order (Doc. 32) which outlined the issue in this case.
In that order, the Court noted that although the motion to
remand stood unopposed, the Court still had to satisfy itself
that remand was statutorily permissible.

The basis of the motion

was that not all of the defendants had consented to the removal,
so that it violated the “rule of unanimity” which is found in 28
U.S.C. §1446(b)(2)(A).

That provision

requires that “[w]hen 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.”
The Court explained the key issue this way:
According to the docket sheet of the state court, which
is attached as an exhibit to the motion to remand, all
seven defendants had been served as of the date the
notice of removal was filed. The notice was filed on
behalf of, and signed by counsel for, three of them Choice Recovery, Inc., Choice Recovery, LLC, and First
Federal Credit Control, Inc. See Doc. 1. However, the

notice affirmatively represents that it was being filed
“with consent of counsel for the remaining
defendants....” Id. Under the case law in this
Circuit, see Harper v. AutoAlliance Intern., Inc., 392
F.3d 195 (6th Cir. 2004), that would appear to be
sufficient to satisfy the “unanimity requirement” found
in §1446(b)(2)(A). Some courts have held that
corporate parties may express that consent only through
counsel, see, e.g., Polston v. Millennium Outdoors,
LLC, 2017 WL 878230 (E.D. Ky. March 6, 2017), but the
notice filed in this case represents that the consent
came from counsel, so that does not appear to be an
issue here, at least on the basis of the current
record.
Some of the non-removing defendants have
affirmatively indicated their consent to the removal.
See Docs. 21 and 22, in which Adena Health Systems and
JP Recovery Services do so. Neither Columbus Radiology
Corporation, which has not appeared in the case, nor
Synerprise Consulting Services, Inc., which has been
voluntarily dismissed, did so, but if consents were
obtained from both of those defendants prior to
removal, as stated in the notice, that would not seem
to matter.
See Doc. 32, at 2-3.
In order to determine the true state of affairs, the Court
directed counsel for the removing defendants to advise the Court
in some fashion whether proper consent for removal was actually
obtained.

That filing was made on May 9, 2017, and provides the

following additional facts.
Prior to removing the case, counsel for the removing
defendants did seek consent to removal from counsel for the other
parties.

He concluded, based upon the wording of certain filings

or docket entries made in the state court, that Charles Ticknor,
counsel for Adena Health System, also represented Columbus
Radiology.

As it turned out, that assumption was incorrect.

a result, he never obtained, prior to removal, consent to the
removal from anyone associated with or actually authorized by

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As

Columbus Radiology to consent.

However, counsel also states that

after the removal occurred, he received telephone consent to the
removal from “a representative of Columbus Radiology.”

His

declaration is silent on whether that representative was an
attorney, and also as to the precise date of the conversation.
Those omissions prevent the Court from having every fact it
would like to have in order to decide the motion to remand.
However, the Court does know this.
on January 31, 2017.

Columbus Radiology was served

It likely had thirty days to consent to

removal starting with date that the three removing defendants
were served, which was February 2, 2017.

See, e.g., Bierly v.

Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999).
In that case, it had until March 4, 2017, to make a timely
consent.

Its first consent - assuming that the “representative”

to whom counsel spoke had the ability to provide a valid consent
- came after removal, which occurred on March 3, 2017.

There is

a possibility that if the consent was valid (but see Polston v.
Millennium Outdoors, LLC, 2017 WL 878230 (E.D. Ky. March 6,
2017), holding that a corporate party can consent only through
counsel), it was timely received, but the record does not
affirmatively reflect that.

The notice of removal refers only to

the invalid consent solicited from Mr. Ticknor.

The declaration

of counsel does not affirmatively describe a timely consent.
The Court recognizes that there is some disagreement about
whether there is now a 30-day time limit on consenting to
removal.
2017).

See, e.g., Couzens v. Donohue, 854 F.3d 508 (8th Cir.

There is even a disagreement among district courts within

the Sixth Circuit.

Compare Columbus Equipment Co. v. RKJ

Enterprises, LLC, 2015 WL 5023059, *3 (N.D. Ohio Aug. 24,
2015)(holding that the “the timing of the consent of [other
defendants] to the removal of this case is critical to the
analysis” of compliance with the rule of unanimity) with Gaynor
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v. Miller, 205 F.Supp.3d 935, 940 (E.D. Tenn. 2016)(holding that
Ҥ1446(b)(2)(C) does not require such consent to be filed within
thirty days...”).

Rather than resolve that matter, it is

sufficient to say here that there are substantial doubts about
the validity of removal, including whether proper consent was
ever obtained from Columbus Radiology, which is still
unrepresented in this case.

Given such doubts and the failure of

the record affirmatively to support removal, the Court grants the
motion to remand (Doc. 20) and remands this case to the
Chillicothe, Ohio Municipal Court.
/s/ Terence P. Kemp
United States Magistrate Judge

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