Opinion
Civil Action No. 04-1027 Section "S" (5).
November 18, 2004
ORDER AND REASONS
IT IS ORDERED that plaintiffs' motion to remand (Document 11) is hereby GRANTED.
A. Background.
Plaintiffs John E. Martinez and Gladys Y. Martinez are spouses who allege that they were each employed by TJH2B Analytical Services, Inc., which provides testing, diagnostic, and research and development services for the electric power industry. Plaintiffs allege that during their employment, they worked around, tested, and were exposed to dangerously high levels of polychlorinated biphenyls (PCBs) owned by defendants Entergy Corp. and Cleco Corp. and manufactured by defendant Pharmacia Corp., f/k/a Monsanto Co. Plaintiffs allege that as a result of their exposure to PCBs, they have been diagnosed with cancer.
On April 12, 2004, Monsanto removed this case, alleging federal jurisdiction under 28 U.S.C. § 1334(b) because the case relates to the pending bankruptcy of nondefendant Solutia, Inc., which allegedly owes Monsanto indemnity for plaintiffs' claims. The Notice of Removal was signed only by Darryl J. Foster, the attorney for Monsanto. It states:
Notwithstanding the ability of Monsanto to remove this action itself, all of the other properly joined and served defendants have consented to, and joined in, this removal. Defendants Entergy Corporation, Cleco Corporation and TJH2B Analytical Services, Inc. have verbally and in writing consented to and joined in the removal. See Defendants' Notices of Consent to and Joinder in Removal.
In the Notice of Removal, Monsanto averred that it did not need to obtain its codefendants' consent. However, Monsanto opposes plaintiff's remand motion by arguing only that it did, in fact, obtain the consent of its codefendants.
Notice of Removal at ¶ 27.
The Notice of Removal contains no indication that Entergy, Cleco, and TJH2B authorized Monsanto to act on their behalf in representing that they joined in the removal. Contemporaneously filed with the Notice of Removal is a document entitled "Consent to Removal" (the "Consent"), which states that "Defendants Entergy Corporation, Cleco Corporation and TJH2B Analytical Services hereby consent to Monsanto Company's notice of removal." The Consent bears signature lines for the attorneys for these three additional defendants, but each bears only the signature of "Darryl Foster, for" the other attorneys.
B. Analysis.
It is an "axiom" that "the removal statutes are to be strictly construed against removal." Getty Oil Corp. v. Insurance Company of North America, 841 F.2d 1254, 1263 n. 13 (5th Cir. 1988). Plaintiffs argue that this case should be remanded because Monsanto did not obtain the valid consent of Entergy, Cleco, and TJH2B to its removal.
It is uncontested that Entergy, Cleco, and TJH2B were served prior to removal.
Although the removal statutes do not explicitly require unanimity, the Fifth Circuit has held that under § 1446(a), "all served defendants must join in the removal petition." Gillis v. State of Louisiana, 294 F.3d 755, 759 (5th Cir. 2002); Getty Oil, 841 F.2d at 1262 n. 9. This principle "simply requires that there be `some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have the authority to do so, that it has actually consent ed to such action.'" Gillis, 294 F.3d at 759 (emphasis in original); Getty Oil, 841 F.2d at 1262 n. 11.
The rule of unanimity is subject to certain limited exceptions, but none is applicable. See generally Badeaux v. Scott, 1998 WL 246702 (E.D. La. May 13, 1998) (explaining exceptions to rule of unanimity).
In Getty Oil the removing defendant (INA) represented in the removal petition that another defendant, NL, "do[es] not object and consents[s] to this Petition for Removal." The Fifth Circuit determined that this was insufficient because it "does not allege that NL has authorized INA to formally (or otherwise) represent to the court on behalf of NL that NL has consented to the removal." Id. at 1262 n. 11. Accordingly, it was insufficient for Monsanto to merely represent in its removal notice that the other served defendants consented.
Jacob v. Greyhound Lines, Inc., 2002 WL 31375612, at *7 (E.D. La. Oct. 21, 2002); Hinojosa v. Perez, 214 F. Supp. 2d 703, 707 n. 2 (S.D. Tex. 2002); Marshall v. Skydive America South, 903 F. Supp. 1067, 1070 (E.D. Tex. 1995); Samuel v. Lagman, 780 F. Supp. 424, 427 (N.D. Tex. 1992); Moody v. Commercial Ins. Co. of Newark, New Jersey, 753 F. Supp. 198, 200 (N.D. Tex. 1990); Burkart v. City of New Orleans, 1988 WL 54767, at *2 (E.D. La. May 23, 1988).
The Consent is also an improper indication of TJH2B's, Entergy's, and Cleco's consent to removal. The Consent violates Rule 11, which requires that filings "be signed by at least one attorney of record in the attorney's individual name." In Baker v. Ford Motor Co., 1997 WL 88260 (N.D. Miss. Feb. 25, 1997), defendant Grumman removed the case. Grumman's removal notice stated that "Ford Motor Company, through its local counsel, Victor McTeer, joins in this removal by separate Joinder in Removal." Ford's joinder was not filed until after the thirty-day removal window had closed, but defendants argued that the statement in the removal notice concerning Ford's consent was sufficient. The court disagreed:
The Consent also violates Eastern District of Louisiana Local Rule 11.1 E, which provides that "Every pleading, motion, or other paper presented for filing shall, in accordance with the Federal Rules of Civil Procedure, be signed personally by counsel in his or her individual name."
The requirement in this circuit that each defendant or its official representative indicate its joinder in or consent to removal is consistent with the requirement, under Rule 11 of the Federal Rules of Civil Procedure, that each pleading, written motion or other paper submitted to the court be signed by the party or its attorney of record, if represented. Accordingly, Rule 11 "does not authorize one party to make representations or file pleadings on behalf of another."Id. at *2. Additionally, a similar argument was rejected in Spillers v. Tillman, 959 F. Supp. 364 (S.D. Miss. 1997). Spillers involved two defendants, Tillman and the Natchez Regional Medical Center. Tillman's counsel, Underwood, signed the removal notice, stating that "defendants" were removing the case. Although the court recognized that not all defendants had to sign the removal notice, the court found that it was not appropriate for the attorney for one defendant to file pleadings on behalf of the other defendants:
Furthermore, Rule 11, Fed.R.Civ.P., does not authorize one party to make representations or file pleadings on behalf of another. Rather, Rule 11 requires that each pleading, motion or other paper submitted to the court be signed by the party or its attorney of record, if unrepresented. Neither defendant contends that Mr. Underwood represented the Hospital at the time the notice of removal was filed. Instead, the Hospital contends that Rule 11's requirement that every pleading be signed "by at least one attorney of record" permits Mr. Underwood to sign for the Hospital. However, the meaning of Rule 11 is clear: "one attorney of record" refers to each individual defendant and not to the defendants collectively.Id. at 370; see also Getty Oil, 841 F.2d at 1262 n. 11 ("But while it may be true that consent to removal is all that is required under section 1446, a defendant must do so itself."); Smith v. Union National Life Ins. Co., 187 F. Supp. 2d 635, 641-42 (S.D. Miss. 2001) (noting that "a defendant's communication of his or her consent to removal must be in a writing signed by that defendant or by his or her attorney," and that "Fed.R.Civ.P. 11 does not authorize one party to make representations or file pleadings on behalf of another."). The court agrees with the reasoning of these cases, and finds that the Consent does not properly demonstrate the consent of Entergy, Cleco, and TJH2B to removal.
Additionally, defendants have provided the court with affidavits from the counsel of record of Entergy, Cleco, and TJH2B, who each aver that they gave Foster permission to sign the Consent, and that he was formally acting on behalf of each when he did so. However, "all served defendants must join in the petition no later than thirty days from the date on which the first defendant was served." Getty Oil, 841 F.2d at 1263. Entergy was served on March 11, 2004, but the affidavits were not filed into the record until June 8, 2004. Consequently, they fall outside the thirty-day window within which defendants had to consent to removal.
C. Conclusion.
Because there is no valid indication in the record that all served defendants timely consented to removal, plaintiff's motion to remand is granted.
The court does not reach the issues of (1) whether removal was untimely, (2) whether federal subject matter jurisdiction exists, or (3) whether plaintiffs' negligent and fraudulent misrepresentation claims should be dismissed.