Opinion
CASE NO. 19-1454 (GAG)
09-06-2019
RIOS, et al., Plaintiffs, v. LANTZ, et al., Defendants.
Isis A. Roldan-Marquez, Roldan & Navedo Law Office, PSC, Israel Roldan-Gonzalez, Aguadilla, PR, Amexis J. Bonilla-Nieves, AJBN, LLC, Isabela, PR, for Plaintiffs. Hector J. Quinones-Inserni, Ivan E. Aponte-Gonzalez, Garcia, Quiones & Aponte LLC, San Juan, PR, for Defendants.
Isis A. Roldan-Marquez, Roldan & Navedo Law Office, PSC, Israel Roldan-Gonzalez, Aguadilla, PR, Amexis J. Bonilla-Nieves, AJBN, LLC, Isabela, PR, for Plaintiffs.
Hector J. Quinones-Inserni, Ivan E. Aponte-Gonzalez, Garcia, Quiones & Aponte LLC, San Juan, PR, for Defendants.
ORDER
GUSTAVO A. GELPÍ, United States District Judge On August 15, 2019, this Court ordered defendants to show cause in a joint motion as to why this case should not be remanded to the Commonwealth Court of First Instance. (Docket. No. 29). Codefendant Rincon Encantado LLC informed that it had verbally consented to removal of this case since prior to removal. (Docket No. 27). This case was removed to this Court on May 13, 2019 by codefendants Steven and Francia Lantz, codefendant Rincon Encantado LLC did not join the motion. (Docket No. 1). Due to the following, this case is hereby REMANDED to the Commonwealth Court of First Instance.
I. Discussion
28 USC sec 1446(b)(a) & (b)(1) & (b)(2) require that ALL defendants join in the removal notice within 30 days of service of summons. Universal Truck & Equip. Co. v. Caterpillar, Inc., 653 F. App'x 15, 19 (1st Cir. 2016). The issue at hand is that codefendant Rincon Encantado did not join or consent by way of motion within the applicable window of time, and that it cannot now retroactively join in the removal of the action.
As "removal statutes are an infringement on the power of the states, they must be strictly construed in favor of state court jurisdiction." Sansone v. Morton Mach. Works, Inc., 188 F. Supp. 2d 182, 186 (D.R.I. 2002) ( citing Shamrock Oil & Gas Co. v. Sheets, 313 U.S. 100, 108-9, 61 S. Ct. 868, 85 L. Ed. 1214 (1941) ). The First Circuit has stated that from the point a defendant knows of– or should have knowledge of– the possibility of removal to Federal Court under diversity jurisdiction claims, "they ha[ve] to remove the case within 30 days of service." Id. "If the case as stated by the initial pleading is removable, 28 U.S.C.S. § 1446(b)(1) requires the defendant to remove within thirty days of its receipt." Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 69 (1st Cir. 2014).
In line with the other circuits that have adopted a bright-line approach, we hold that the time limits in Section 1446(b) apply when the plaintiffs' pleadings or the plaintiffs' other papers provide the defendant with a clear statement of the damages sought or with sufficient facts from which damages can be readily calculated.
Id. "The Section 1446(b)(1) clock runs in every case from the date of service, regardless of the contents of the complaint." See Romulus III v. CVS Pharmacy, Inc., 2014 U.S. Dist. LEXIS 75816, 2014 WL 2435089, at *1 (D.Mass. 2014) ; Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 73 (1st Cir. 2014). "By filing a complaint or subsequent paper that meets the bright-line rule, the plaintiffs will trigger one of the thirty-day clocks in Section 1446(b) and will force the defendant to remove immediately or lose the opportunity to do so later." Id at 76.
Additionally, "in a multi-defendant case, all defendants must ‘join’ in the removal petition. Sansone v. Morton Mach. Works, Inc., 188 F. Supp. 2d 182, 184 (D.R.I. 2002) (citing Gableman v. Peoria, D. & E. Ry. Co., 179 U.S. 335, 337, 21 S. Ct. 171, 45 L. Ed. 220 (1900) ; Chicago R.I. & P. Ry. v. Martin, 178 U.S. 245, 20 S. Ct. 854, 44 L. Ed. 1055 (1900) ).
[Such] does not require that all defendants actually sign the petition. It requires only that all defendants consent to removal. Hill v. Phillips, Barratt, Kaiser Engineering Ltd., 586 F. Supp. 944, 945 (D. Me. 1984) ; Ogletree v. Barnes, 851 F. Supp. 184, 186 (E.D. Pa. 1994). However, that consent must be manifested clearly and unambiguously to the
Court within the statutorily prescribed thirty days . Henderson v. Holmes, 920 F. Supp. 1184, 1187 (D. Kan. 1996) ("Each party must independently and unambiguously file notice of its consent and its intent to join in the removal within the thirty-day period."); Production Stamping Corp. v. Maryland Cas. Co., 829 F. Supp. 1074, 1076-77 (D. Wis. [E.D.Wis.] 1993) ; Landman v. Borough of Bristol, 896 F. Supp. 406, 409 (D.C. Pa. [E.D.Pa.] 1995) ; Stonewall Jackson Memorial Hosp. v. American United Life Ins. Co., 963 F. Supp. 553, 558 (D. W. Va. [N.D.W.Va.] 1997). Failure to do so constitutes a ‘defect in removal procedure’ and is grounds for remand. F.D.I.C. v. Loyd, 955 F.2d 316, 320 (5th Cir. 1992).
Sansone v. Morton Mach. Works, Inc., 188 F.Supp.2d 182, 184 (D.R.I. 2002) (emphasis ours).
In the case at hand, while codefendant Ricon Encantado did file an Informative Motion Notifying Prior Consent as to Removal on August 15, 2019, (Docket No. 27), it did so well past the thirty-day statutory period and three months after its fellow codefendants Steven Hough Lantz and Francia Rene Lantz. (Docket No. 1). While such a motion may constitute an intent of unambiguous consent to removal, the untimely filing of said motion renders the removal procedure defective. Consequentially, viewing all in favor of state court jurisdiction, this Court finds that removal was improper.
II. Conclusion
Thus, in light of the above reasoning this case is REMANDED to the Commonwealth Court of First Instance.