Opinion
CIVIL ACTION NO: 04-824, C/W 04-879, SECTION: "J" (5)
May 26, 2004
ORDER AND REASONS
Before the Court are the following motions: Gulf South's Motion for Leave to File Amended Notice of Removal (04-324, Rec. Doc. 8); and Dow's Motion to Determine Adequacy of the Removal Notice, and alternatively, for Leave to Amend Notice of Removal (04-824, Rec. Doc. 12). The motions, set for hearing on May 26, 2004, are before the Court on briefs without oral argument. For the reasons which follow, the Court finds that the notices of removal in the consolidated cases are defective, and the defects cannot be cured at this juncture. Accordingly, these matters must be remanded to state court, as more fully discussed below.
BACKGROUND
The consolidated cases were removed on March 24, 2004 (Aucoin) and March 29, 2004 (LeBlanc). Of particular note in the context of the present motions, is the fact that neither Notice of Removal contained the written consent of all served defendants; rather, each contained the following averment: "All properly joined and served defendants consent to the removal of this matter." Aucoin, 04-824, Notice of Removal ¶ 11;LeBlanc, 04-879, Notice of Removal ¶ 11. Consequently, the plaintiffs moved to remand the cases on April 2, 2004 (LeBlanc) and on April 9, 2004 (Aucoin), citing the lack of written consent of all defendants as a defect in the removal procedure requiring remand. In response, the instant motions were filed.Dow and Gulf South have opposed the motions, arguing that the averments contained in the notices are adequate, and/or that any inadequacy can be cured by amending the notices pursuant to Federal Rule 15 or 28 U.S.C. § 1653. The parties do not dispute that the thirty-day period for filing a Notice of Removal had elapsed prior to the attempts to amend the removal notices.
DISCUSSION
Under 28 U.S.C. § 1446(b), a notice of removal must be filed within thirty days of the first-served defendant's receipt of the initial pleading or summons in which a removable issue is raised. Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262-63 (5th Cir. 1998). Under the "rule of unanimity" established by Fifth Circuit jurisprudence, all defendants are required to join in the notice of removal within the thirty-day period. Id. at 1262. While the thirty-day time limit is not Jurisdictional, it is mandatory and therefore strictly construed. Id. at 1263.
In a multiple defendant case, the consent must be made by each defendant itself. Id. at 1262 n. 11. "This does not mean that each defendant must sign the original petition for removal, but there must 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 authority to do so, that it has actually consented to such action." Id. Thus, the Getty court found consent by the non-removing defendant inadequate where there was nothing in the record to indicate such consent except the removing defendant's unsupported statement in the original removal petition that the other defendant actually consented to removal at the time the original petition was filed. Id. The removing defendant's removal petition in Getty did not allege that the other defendant had authorized the removing defendant to represent to the court that it had consented to the removal. Accordingly, the court found that "there was no adequate allegation or showing of [the non-removing defendant's] actual joinder in or consent to the original removal petition." Id. The Notices of Removal filed herein are defective
The Getty facts are similar to those presented in the consolidated cases at bar. While the removing defendants have alleged the consent of other defendants in each Notice of Removal, and while the non-removing defendants now seek to submit evidence that they did in fact consent prior to removal, the fact remains that in neither case was there any written filing in this court prior to the expiration of the thirty-day limit that satisfactorily indicates the consent of all defendants to removal. As in Getty, the notices contain a general averment of consent; and as in Getty, there is no recitation of any authority to make that consent. On these facts, following Getty, the Court concludes that the Notices of Removal are defective, and the only remaining issue is whether the defects can be cured.
The defects in the removal procedure cannot be cured at this time
Because removal of cases from state to federal court is considered an infringement on state sovereignty, statutory provisions governing removal are strictly applied. Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868 (1941). This is true even in situations where the provision at issue is not jurisdictional. Getty, 841 F.2d at 1263 n. 13 ("[B]y restricting removal to instances in which the stature clearly permits it, the rule is consistent with the trend to limit removal jurisdiction and with the axiom that the removal statutes are to be strictly construed against removal."). For this reason, numerous cases considering the question have found that failure to adequately reflect the consent of all defendants in a removal notice is a defect not curable by amendment and requiring remand. See, e.g., Smith v. Union Mat'l Life Ins., 187 F. Supp.2d 635 (S.D. Miss. 2001); Sims v. Ward, 2001 WL 1104636 (E.D. La. Sept. 19, 2001); Mayers v. Connell, 651 P. Supp. 273 (M.D. La. 1986); Courtney v. Benedetto, 627 F. Supp. 523 (M.D. La. 1986).
With respect to defendants' argument that they should be `allowed to amend their Notices of Removal pursuant to Federal Rule 15, the general rule articulated in that provision is superseded by the more particular provision governing removal procedure. "A removal petition may be amended freely within the thirty day period set forth in 1446(b)." Courtney at 527 citing Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270 (7th Cir. 1982). The only avenue available for amendment after the thirty days has run is 28 U.S.C. § 1653. Marshall v. Skydive America South, 903 F. Supp. 1067, 1069 (E.D. Tex. 1995).
However, 28 U.S.C. § 1653, by its terms, may only be utilized to cure defective allegations of jurisdiction. 28 U.S.C. § 1653; see also, Marshall, 903 F. Supp. at 1070-71 and cases cited therein; Mayers, 651 F. Supp. at 274-75, citing Courtney, 527 F. Supp. 523. It may not be used to amend "a substantial defect in removal proceedings," such as the failure to obtain the consent of a co-defendant. Id. "A defect of this nature in the removal petition is not curable by amendment under section 1653." Brooks v. Rosiere, 585 F. Supp. 351 (E.D. La. 1984) (other citations omitted).
In sum, under controlling case law, the Notices of Removal in the consolidated cases were defective due to their failure to include adequate allegations of consent of all defendants., Moreover, because the thirty-day period mandated by § 1446 has passed, defendants may not amend the notices to cure the defects. Accordingly, these matters must be remanded to state court. Therefore,
The Court recognizes that the Motions to Remand in the instant cases are not set for hearing until June 18, 2004. However, because the ruling herein is dispositive of the remand issue, the Court considers remand appropriate at this time.
IT IS ORDERED that Gulf South's Motion for Leave to File Amended Notice of Removal (04-824, Rec. Doc. 8) should be and is hereby DENIED;
IT IS FURTHER ORDERED that Dow's Motion to Determine Adequacy of the Removal Notice, and alternatively, for Leave to Amend Notice of Removal (04-824, Rec. Doc.' 12) should be and is hereby DENIED; IT IS FURTHER ORDERED that Aucoin, et al v. Gulf South Pipeline L.P., et al, Civil Action 04-824, should be and is hereby REMANDED to the 23rd Judicial District Court for the Parish of Assumption, Louisiana;
IT IS FURTHER ORDERED that Leblanc, et al v. Dow Chemical Company, et al, Civil Action 04-879, should be and is hereby REMANDED to the 23rd Judicial District Court for the Parish of Assumption, Louisiana,