Wells Fargo Bank NA v. Fitzgerald et al
Filing
8
ORDER signed by Judge Brett H Ludwig on 1/27/25 that all parties must submit supplemental briefing on how Discover Bank's absence affects removal and the pending motion to remand 5 on or before February 3, 2025. (cc:all counsel and mailed to pro se party)(jad)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WELLS FARGO BANK NA,
Plaintiff,
v.
Case No. 24-cv-0835-bhl
PATRICK FITZGERALD, BRITTANY
FITZGERALD and DISCOVER BANK,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
On March 15, 2024, Plaintiff Wells Fargo Bank, N.A., commenced suit against Defendants
Patrick Fitzgerald, Brittany Fitzgerald, and Discover Bank to foreclose on a mortgage. (ECF No.
1-1 at 22.) On July 3, 2024, well past the 30-day procedural deadline for removal, 28 U.S.C. §
1446(b)(1), the Fitzgeralds removed the case to this Court, invoking both federal jurisdiction and
diversity jurisdiction. (ECF No. 1 at 1, 4.) In response, on September 6, 2024, Wells Fargo moved
to remand the case. (ECF No. 5.)
The Fitzgerald’s notice of removal is signed only by them. (ECF No. 1 at 8.) It is not
signed by the other defendant in this case, Discover Bank. Indeed, at this point, Discover Bank
has neither consented to removal nor otherwise appeared before the Court. Valid removal
generally requires the consent of all defendants. Northern Ill. Gas Co. v. Airco Indus. Gases, A
Division of Airco, Inc., 676 F.2d 270, 271–72 (7th Cir. 1982) (citing Chi., Rock Island, & Pac. Ry.
Co. v. Martin, 178 U.S. 245, 248 (1900)).
While Wells Fargo argues for remand on a variety of grounds, it does not address Discover
Bank’s failure to join in the removal. The Fitzgeralds’ briefing does not address Discover Bank’s
absence either. (See ECF Nos. 5–7.) Given Discover Bank’s failure to appear, it is unclear if
Discover Bank is even aware that this case is now in federal court, let alone that it joins in the
Fitzgerald’s decision to remove the matter to this court.
The Court will therefore order all
parties—including Wells Fargo, the Fitzgeralds, and Discover Bank—to submit supplemental
briefing within 7 days, addressing Discover Bank’s failure to consent to removal and how that
failure affects removal and the pending motion to remand.
Accordingly,
IT IS HEREBY ORDERED that all parties must submit supplemental briefing on how
Discover Bank’s absence affects removal and the pending motion to remand, ECF No. 5, on or
before February 3, 2025.
Dated at Milwaukee, Wisconsin on January 27, 2025.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
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