CASEY v. XPEDX et al

Filing 13

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 11/28/16. 11/29/16 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT CASEY

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v.
XPEDX, et al.

CIVIL ACTION

NO. 16-5135

MEMORANDUM
Bartle, J.

November 28, 2016
Plaintiff Robert Casey originally brought this

negligence, products liability, and breach of warranty action
against defendants Xpedx, 1 Veritiv, Veritiv Corporation, as well
as Ford Motor Company and Ford (collectively “Ford”) in the
Court of Common Pleas of Philadelphia County.

It is undisputed

that Ford timely filed a Notice of Removal in this court on
September 26, 2016 based on diversity of citizenship of the
parties and an amount in controversy in excess of $75,000
exclusive of interest and costs.
1446.

See 28 U.S.C. §§ 1332(a),

Within thirty days, the plaintiff moved to remand this

action to the state court on the ground that the other served
defendants did not timely file consents to removal.
See § 1447(c).

The defendants oppose this motion.

Ford’s Notice of Removal stated:

“Ford has sought and

obtained co-Defendants[’] consent in filing this removal.”
plaintiff argues that this is insufficient.

1.

The

He maintains that

Xpedx was named twice in the complaint as a defendant.

each co-defendant itself must place its consent on the record in
a timely manner and that Ford’s filing of the Notice of Removal
cannot speak for them.

Attached to the defendants’ joint

response in opposition to plaintiff’s motion to remand were two
e-mails dated Wednesday, September 21, 2016.

In the first,

counsel for the defendants other than Ford wrote to Ford’s
counsel:
. . . thanks for your telephone message. I
agree with your strategy to remove the case
to federal court. Before you do that, I
would like to file Preliminary Objections to
the Amended Complaint in the Philadelphia
Court of Common Pleas action.
So, will you withhold filing of the Petition
until Friday [September 23, 2016]? Thanks.
Ford’s counsel responded:

“Yes.

We will wait to remove until

next Monday [September 26, 2016].”

The plaintiff and the court

did not have notice of those e-mails until November 2, 2016 when
the defendants’ joint opposition to remand was filed.
The removal procedure is set forth in 28 U.S.C.
§ 1446.

With exceptions not relevant here, when a civil action

is removed from the state court of which the United States
district court has original jurisdiction, “all defendants who
have been properly joined and served must join in or consent to
the removal of the action.”

See § 1446(b)(2)(A).

The statute

is silent on exactly how any joinder or consent is to be made
known or effected.
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Various courts throughout the country which have
grappled with this question are divided.

Some allow one

defendant to represent to the court that a co-defendant consents
to removal while others require each defendant to speak for
itself and file a written consent in some form.

See 16 James Wm.

Moore et al., Moore’s Federal Practice ¶ 107.42[1] (3d ed. 2016).
Judge William H. Yohn of this court decided this
precise question in Ogletree v. Baines, 851 F. Supp. 184
(E.D. Pa. 1994).

In that medical malpractice and civil rights

action initiated in the state court, some but not all of the
defendants filed a timely Notice of Removal in this court.

The

Notice of Removal stated that “[a]ll defendants to this action
consent to its removal to Federal District Court.”

Having found

no precedent in this Circuit, Judge Yohn reviewed the case law
in other circuits and concluded that remand was required.

We

agree with Judge Yohn that we must strictly construe the removal
statute and resolve all doubts in favor of remand.

See also

Dietz v. Avco Corp., 168 F. Supp. 3d 747, 756-57 (E.D. Pa.
2016).
In a matter as important as removal with its implications
for federalism, the proper reading of § 1446(b)(2)(A), in our view,
includes the requirement that each defendant who has been served at
the time the Notice of Removal is filed must file a consent to
removal either individually or jointly within the time frame set
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forth under § 1446(b)(2)(B), that is within thirty days of the date
of service of the initial pleading or under certain circumstances
within thirty days of the date of service of the summons, as set
forth in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526
U.S. 344 (1999) and Sikirica v. Nationwide Ins. Co., 416 F.3d 214
(3d Cir. 2005).

Each defendant must speak for itself by means of

an individual or joint filing with the court.

This is not an

onerous burden and avoids any ambiguity or challenge from the
plaintiff concerning the validity of the consent.
Here, Ford merely stated in its Notice of Removal that
it had obtained the consent of the other defendants.

The

remaining defendants did not file their own Notice of Removal or
a joinder or consent to Ford’s Notice of Removal within the
required thirty days after service of the complaint.

The

informal exchange of e-mails between defense attorneys
confirming their agreement to remove the case cannot suffice,
particularly when the e-mails were not filed until November 2,
2016, well beyond the filing deadline under § 1446.
Accordingly, we will grant the motion of the plaintiff
to remand this action to the Court of Common Pleas of
Philadelphia County.

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