ALEJANDRO v. PHILADELPHIA VISION CENTER et al

Filing 17

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE HARVEY BARTLE, III ON 9/21/17. 9/21/17 ENTERED AND COPIES E-MAILED.(ti, )

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

ALISHA ALEJANDRO
v.
PHILADELPHIA VISION CENTER,
et al.

:
:
:
:
:
:

CIVIL ACTION

NO. 17-3304

MEMORANDUM
Bartle, J.

September 21, 2017
This is an action brought under the Sherman Antitrust

Act, 15 U.S.C. §§ 1 and 2, the Clayton Antitrust Act, 15 U.S.C.
§§ 15 and 16 and the Pennsylvania Unfair Trade Practices and
Consumer Protection Law, 73 P.S. §§ 201-1, et seq.
Plaintiff, Alisha Alejandro, originally filed this
lawsuit in the Court of Common Pleas of Philadelphia County
against three defendants, Philadelphia Vision Center (“PVC”),
Bruce Rubin, and Louisa C. Gaiter Johnson, O.D.

Thereafter

defendant Johnson removed the action to this court.

Now pending

is plaintiff’s motion to remand to the state court on the ground
that all defendants did not timely consent to removal.
The action was initiated in the state court with a
writ of summons.

A complaint was subsequently filed, and

service was made on all defendants on July 5, 2017.

Defendant

Johnson timely filed a Notice of Removal on July 25, 2017.

The

other two defendants, PVC and Rubin, who are represented by the

same attorney, did not file a Notice of Removal or a consent or
joinder at that time.

However, on August 1, 2017, they moved to

dismiss the complaint under Rule 12(b)(6) of the Federal Rules
of Civil Procedure.

In that motion, PVC and Rubin stated, “On

July 25, 2017, defendant, Dr. Johnson, filed her notice of
removal.

Defendants Philadelphia Vision Center and Bruce Rubin

did not object to the removal of the matter to this court.”
Plaintiff’s motion to remand followed on August 15, 2017.

One

day later, on August 16, 2017, PVC and Rubin filed a
“Confirmation of Consent to Removal.”
Under 28 U.S.C. § 1441, a civil action such as this
where the district court has original jurisdiction may be
removed from the state court to the federal court.

Removal must

occur “within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief[.]” 1

28 U.S.C. § 1446(b)(1).

In addition, “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).

The window for joinder or consent of

each defendant is thirty days after receipt by or service of the
complaint on that defendant.

See 28 U.S.C. § 1446(b)(2)(B).

Under § 1447(c), the plaintiff has thirty days after the filing

1. There is a second requirement under § 1446(b)(1) which is
not relevant here.
-2-

of the Notice of Removal to move to remand the action to the
state court on the basis of any procedural defect in the removal
process.

A motion to remand that is grounded in lack of subject

matter jurisdiction may be made at any time before final
judgment.

Id.
It is well established that all defendants, with

exceptions not relevant here, must timely consent to or join in
the removal of an action for removal to be effective.

Balazik

v. County of Dauphin, 44 F.3d 209, 213 n.4 (3d Cir. 1995); Lewis
v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985).

Each defendant

must sign another defendant’s Notice of Removal, file its own
Notice of Removal, or file a written consent to, or joinder in
the original Notice of Removal. 2

Landman v. Borough of Bristol,

896 F.Supp. 406, 409 (E.D. Pa. 1995).
One defendant may not speak for another defendant when
filing a Notice of Removal.

Id.

Defendant A, for example,

cannot give its consent to removal by authorizing defendant B,
who is filing the Notice of Removal, to say that defendant A
consents without the defendant A or defendant A’s attorney
actually signing the Notice of Removal.

Green v. Target Stores,

Inc., 305 F.Supp. 2d 448, 449 (E.D. Pa. 2004).

Nor may consent

2. Failure of all defendants to consent to removal can be
waived since such a defect is not jurisdictional. In re FMC
Corp. Packaging Sys. Div., 208 F.3d 445, 451 (3d Cir. 2000).
However, plaintiff has filed a timely motion to remand and thus
has not waived any defect.
-3-

be established by attaching a letter of consent from one
defendant to another defendant’s Notice of Removal.

Morganti v.

Armstrong Blum Mfg. Co., 2001 WL 283135 at *2 (E.D. Pa. March
19, 2001).

Furthermore, the mere entry of appearance of

defendant’s attorney or the mere filing of an answer or a motion
to dismiss by that defendant in the federal court does not
constitute consent.

See McGuire v. Safeware, Inc., 2013 WL

5272767 at *3 (E.D. Pa. Sept. 17, 2013).

As stated in Morganti,

all defendants must “expressly, officially and unambiguously
consent to join in a notice of removal to federal court.”
Morganti, 2001 WL 283135 at *4.
The question before the court is whether the statement
of PVC and Rubin about removal in their August 1, 2017 motion to
dismiss the complaint constitutes the filing of consent to
remove this action to the federal court.

PVC and Rubin simply

wrote in their motion to dismiss that they “did not object” to
the removal of this action to the court when Johnson filed her
Notice of Removal on July 25, 2017.

An expression of no

objection to an act of another party does not mean consent to or
joinder in what that other party is doing.

It is at best an

ambiguous signal that cannot meet the requirement of an
affirmative written consent to removal as required under
§ 1446(a) and as articulated in the case law.

-4-

The removal statute must be strictly construed in
favor of state court jurisdiction.

See Boyer v. Snap-on Tools

Corp., 913 F.2d 108, 111 (3d Cir. 1990).

PVC and Rubin did not

expressly, officially and unambiguously consent to remove this
action to the federal court in a timely manner.

Their words in

their August 1, 2017 motion to dismiss that they “did not
object” to Johnson’s removal will not suffice.

Recognizing the

deficiency, they belatedly docketed a “Confirmation of Consent
to Removal” but not until August 16, 2017, a day after plaintiff
filed her motion to remand. 3

Defendants’ consent comes too late

since it occurred more than thirty days after July 5, 2017 when
defendants were served with the complaint.

See 28 U.S.C.

§ 1446(b)(2)(B).
Accordingly, since all defendants did not timely
consent to removal, this action will be remanded to the Court of
Common Pleas of Philadelphia County.

3. In the Confirmation of Consent to Removal, the attorney for
PVC and Rubin stated in paragraph 5, “Defendant’s [sic] attorney
was prepared to file Consent to Removal with the Court [in late
July] but deemed it unnecessary because the matter was already
removed to this Court.” His understanding of the law is
incorrect.
-5-