Laccinole v. Recovery Resources, LLC et al
Filing
10
MEMORANDUM AND ORDER granting 4 Motion to Remand to State Court and remanding the case to Rhode Island Superior Court. So Ordered by Chief Judge William E. Smith on 9/25/2015. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
Plaintiff,
)
)
v.
)
)
RECOVERY RESOURCES, LLC;
)
FLEISIG & GAVLICK, LLC;
)
MARK V. FLEISIG, ESQ.,
)
)
Defendants.
)
______________________________)
CHRISTOPHER LACCINOLE,
C.A. No. 14-455 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Plaintiff,
Christopher
Laccinole
(“Laccinole”),
filed
a
motion to remand this case to the Rhode Island Superior Court.
(ECF No. 4.)
Laccinole initially filed suit in Superior Court
alleging that Defendants, Recovery Resources, LLC (“Recovery”),
Fleisig
&
Fleisig,
misconduct.
Gavlick,
Esq.
LLC
(“Fleisig
(“Fleisig”),
&
Gavlick”),
engaged
in
and
Mark
V.
debt-collection
For the reasons set forth below, Laccinole’s motion
to remand is GRANTED.
I.
Background
Laccinole initiated this suit against Defendants under the
Fair Debt Collection Practices Act (“FDCPA”), the Rhode Island
Fair Debt Collection Practices Act (“RIFDCPA”), and the Rhode
Island Deceptive Trade Practices Act (“DTPA”).
(Compl. ¶¶ 1-2,
ECF No. 1-3.)
Defendants were served with Laccinole’s Complaint
on September 18, 2014.
(Pl.’s Mot. to Remand ¶ 6, ECF No. 4.)
On October 14, 2014, after none of Defendants responded to
Laccinole’s action, default was entered against each Defendant.
(Pl.’s Mot. to Remand ¶ 10, ECF No. 4.)
Approximately an hour
after the entry of default, Fleisig removed the action to this
Court on the basis of federal question jurisdiction.
See 28
U.S.C. § 1331; (Pl.’s Mot. to Remand ¶ 11, ECF No. 4.)
The
notice
and
of
removal,
however,
was
silent
as
to
Recovery
Fleisig & Gavlick other than the following statement: “[u]pon
information and belief, all other co-defendants would consent to
the Removal of the above-captioned action to the United States
District
Court
for
the
District
of
Rhode
Island.”
(Defs.’
Notice of Removal ¶ 4, ECF No. 1.)
On October 27, 2014, Laccinole filed a motion to remand,
arguing, among other things, that removal was defective because
Recovery
and
Fleisig
&
Gavlick
did
not
independently
and
unambiguously manifest their consent to removal within thirty
days of service as required by 28 U.S.C. § 1446(b).
to Remand ¶ 23, ECF No. 4.)
(Pl.’s Mot.
Fleisig objected, arguing that,
because Recovery and Fleisig & Gavlick are dissolved entities,
he was the “only viable defendant existing as of the time of the
filing of the Complaint and consent for removal is, therefore,
unanimous.”
(Defs.’ Obj. to Pl.’s Mot. to Remand 3, ECF No. 7.)
2
Alternatively, Fleisig represents that as a principal of the
now-dissolved
co-defendants,
he
would
“consent
behalf of these entities if required to.”
II.
to
removal
on
Id.
Discussion
In order to remove an action from state court, a defendant
must
file
in
the
district
thirty days of service.
court
a
notice
of
removal
See 28 U.S.C. § 1446(b).
within
When a case
involves multiple defendants, the “rule of unanimity” requires
that all of the defendants “join” the removal petition.
Sansone
v. Morton Mach. Works, Inc., 188 F. Supp. 2d 182, 184 (D.R.I.
2002).
Although the rule of unanimity does not require that all
of the defendants involved literally sign the removal petition,
each defendant must independently manifest consent to removal
“clearly and unambiguously to the Court” within the thirty days
allotted by the removal statute.
Courts
differ
with
Id.
regard
to
what
constitutes
consent
sufficient to establish compliance with the rule of unanimity.
Id.
others
For example, some courts require written consent, while
accept
oral
consent
expressed
directly
to
the
court.
Compare Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254,
1262 n.11 (5th Cir. 1988) (requiring that each served defendant
timely file a written indication of consent to removal), with
Clyde v. Nat'l Data Corp., 609 F. Supp. 216, 218 (N.D. Ga. 1985)
(permitting
defendants
to
express
3
their
consent
to
removal
orally to the court), and Colin K. v. Schmidt, 528 F. Supp. 355,
358 (D.R.I. 1981) (accepting an attorney’s statement that he
consented
to
Regardless
removal
of
form,
at
a
however,
conference
each
before
individual
the
court).
defendant
independently manifest its own consent to the court.
must
Sansone,
188 F. Supp. 2d at 185.
Moreover, removal statutes are strictly construed in favor
of
state
court
jurisdiction.
Shamrock
Oil
&
Gas
Corp.
v.
Sheets, 313 U.S. 100, 108–109 (1941); Gorman v. Abbott Labs.,
629 F. Supp. 1196, 1198 (D.R.I. 1986).
Failure of all parties
to manifest their consent to the court “constitutes a ‘defect in
removal procedure’ and is grounds for remand.”
Sansone, 188 F.
Supp. 2d at 184 (quoting F.D.I.C. v. Loyd, 955 F.2d 316, 320
(5th Cir. 1992)).
Remand, however, is not mandatory unless the
district court lacks jurisdiction.
Hernandez v. Six Flags Magic
Mountain, Inc., 688 F. Supp. 560, 562 (C.D. Cal. 1988).
In the present case, Recovery and Fleisig & Gavlick did not
manifest their consent to removal to the Court.
The notice of
removal was clearly filed only on Fleisig’s behalf and neither
Recovery nor Fleisig & Gavlick otherwise timely voiced their
consent
to
the
Court.
The
only
reference
to
Recovery
and
Fleisig & Gavlick within the notice was the general statement
that
“[u]pon
information
and
belief,
would consent to the Removal.”
all
other
co-defendants
(Defs.’ Notice of Removal ¶ 4,
4
ECF
No.
1.)
However,
Fleisig’s
representation
that
“on
information and belief,” the co-defendants “would” consent only
demonstrates that, at the time of removal, the co-defendants had
not consented in accordance with 28 U.S.C. § 1446(b).
Furthermore, Fleisig’s argument that he is the “only viable
defendant”
because
unpersuasive.
the
remaining
Pursuant
to
defendants
R.I.
Gen.
are
dissolved
is
§
7-1.2-1324,
a
Laws
dissolved corporation is subject to suit within two years of its
dissolution.
R.I.
Gen.
Laws
§
7-1.2-1325
then
extends
a
corporation’s legal existence for five years after the date of
its dissolution to, among other things, allow the corporation to
“settle and close its affairs” and “discharge its liabilities.”
See Theta Props. v. Ronci Realty Co., 814 A.2d 907, 914 (R.I.
2003)
(comparing
§
7–1.1–98
and
§
7-1.1-98.1,
predecessor
statutes to § 7-1.2-1324 and § 7-1.2-1325, and explaining that
corporations
can
sue
or
be
sued
within
two
years
of
their
dissolution and that they have five years for winding up their
other
affairs,
including
winding
up
lawsuits).
Fleisig
presented evidence that the date of revocation of Recovery and
Fleisig & Gavlick was May 14, 2014, (Ex. A to Defs.’ Objection
to Pl.’s Mot. to Remand, ECF No. 7-1.), bringing Laccinole’s
September
14,
dissolution
Recovery
and
2014
when
action
companies
Fleisig
&
well
within
remain
Gavlick
5
are
the
period
subject
valid
to
following
litigation.
defendants
despite
their status as presently-dissolved entities, thus their failure
to manifest consent to removal was procedurally fatal.
Fleisig’s argument that, as a principal to the dissolved
co-defendants, he would consent on their behalf “if required to”
is likewise unavailing.
either
the
Although consent can be manifested by
defendant
itself
or
another
with
authority to
formally act on the defendant’s behalf, Getty Oil, 841 F.2d at
1262
n.11,
the
notice
of
removal
does
not
operate
as
a
manifestation of consent by Fleisig on behalf of Recovery and
Fleisig
&
Gavlick.
Indeed,
Fleisig
did
not
mention
his
authority to consent until he filed an objection to the motion
to remand, well after the thirty-day deadline to consent.
Each
defendant’s consent to removal must have been manifested clearly
and
unequivocally
to
the
prescribed by § 1446(b).
fact
that
“consent
Court
within
the
thirty–day
period
Sansone, 188 F. Supp. 2d at 185.
[may
have
been]
communicated
among
The
the
defendants is insufficient; each defendant must notify the Court
of its consent prior to the expiration of the thirty-day period
for the removal petition to be timely.”
Mercy
Med.
Ctr.,
No.
99–Civ.21(DLC),
Berrios v. Our Lady of
1999
WL
92269,
at
*2
(S.D.N.Y. Feb. 19, 1999) (citations omitted).
Ultimately, removal statutes are to be strictly construed,
with any doubts resolved against removal of the action.
Shamrock
Oil,
313
U.S.
at
108–109;
6
Rossello–Gonzalez
See
v.
Calderon–Serra,
Recovery
and
independently
398
F.3d
Fleisig
&
manifest
1,
11
Gavlick
their
(1st
did
consent
Cir.
not
to
2004).
Because
unambiguously
removal
within
and
the
thirty-day period set forth in § 1446(b), Laccinole’s motion to
remand is granted. 1
III.
Conclusion
Plaintiff’s motion is GRANTED and the case is REMANDED to
the Rhode Island Superior Court.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: September 25, 2015
1
Because this Court finds that removal was defective based
on the unanimity requirement, this Court need not address
Laccinole’s alternative argument that removal was defective
pursuant to 28 U.S.C. § 1446(a).
7
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