Opinion
Civil Action No. 01-2082-KHV.
April 10, 2001.
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff's Motion To Remand (Doc. #8) filed March 7, 2001. For reasons set forth below, plaintiff's motion is sustained.
Factual Background
On January 23, 2001, in the District Court of Wyandotte County, Kansas, FastPro International, Inc. filed its petition against Great Plains Software O.C., Inc. ("Great Plains"), Lamkin, Schnare Associates, Inc. ("Lamkin"), and The Morrison Group, Ltd. ("Morrison"). Two days later, on January 25, 2001, plaintiff served Lamkin and Morrison. A week later, on January 30, 2001, plaintiff served Great Plains. On February 14, 2001, Morrison filed a notice of removal of the state court action with this Court. See Notice of Removal (Doc. #1). The notice did not allege that either Great Plains or Lamkin consented to removal.
On March 7, 2001, plaintiff filed the instant motion to remand. Plaintiff asks the Court to remand and award costs and fees.
Analysis
In its notice, Morrison did not allege that either Great Plains or Lamkin consented to removal. Morrison concedes that its notice was defective and that the Court should remand. Except for a few exceptions not applicable here, all defendants must consent to removal within 30 days after service is obtained on the first-served defendant. See, e.g., Wakefield v. Olcott, 983 F. Supp. 1018, 1021 (D.Kan. 1997); McShares v. Barry, 979 F. Supp. 1338, 1342-43 (D.Kan. 1997); Scheall v. Ingram, 930 F. Supp. 1448, 1449 (D.Colo. 1996); Henderson v. Holmes, 920 F. Supp. 1184, 1186 (D.Kan. 1996). In addition, a notice of removal filed by fewer than all defendants is defective if it fails to explain the absence of co-defendants. See Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266 (9th Cir. 1999); N. Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 273 (7th Cir. 1982); Scheall, 930 F. Supp. at 1449; 16 James Wm. Moore et al., Moore's Federal Practice 3d § 107.11[1][c] at 107-33 (3d Ed. 1997). Also, Morrison also did not comply with D. Kan. Rule 81.2, which provides:
The exceptions include non-joinder of nominal, unknown, unserved or fraudulently joined defendants. See McShares v. Barry, 979 F. Supp. 1338, 1342 (D.Kan. 1997).
Within 20 days after filing the notice of removal, the removing party shall procure and file with the clerk of this court a copy of all records and proceedings had in the state court. The court may remand any case sought to be removed to this court because of failure to comply with the provisions of this subsection.
Morrison states that it complied with Rule 81.2 because it filed all pleadings from the state court action which had been "served on it." Defendant, The Morrison Group, Ltd.'s Response To Plaintiff's Motion To Remand (Doc. #11) filed March 16, 2001 at 3. The plain text of the rule, however, requires Morrison to file a copy of "all records and proceedings" from the state court action.
Based on Morrison's failure to timely obtain the consent of all co-defendants and its failure to comply with D. Kan. Rule 81.2, remand to state court is appropriate. See Carrothers Constr. Co., Inc. v. U.S.A. Slide, Inc., No. 98-2097-JWL, 1998 WL 295602, at *1 (D.Kan. May 18, 1998) (remand based solely on non-compliance with D. Kan. Rule 81.2); Henderson, 920 F. Supp. at 1188 (remand because all defendants did not timely consent); Federated Rural Elec. Ins. Co. v. Mohave Elec. Co-op., No. 92-2279-O, 1992 WL 309524, at *1 (D.Kan. Sept. 9, 1992) (remand based solely on non-compliance with D. Kan. Rule 81.2); see also Patel v. Moore, 968 F. Supp. 587, 591 (D.Kan. 1997) (remand based in part on failure of all defendants to timely consent and non-compliance with D. Kan. Rule 81.2).
Morrison argues that the Court should not award costs and expenses. Pursuant to 28 U.S.C. § 1447(c), an order granting a motion to remand "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal." Such an award is therefore within the Court's discretion. See Suder v. Blue Circle, Inc., 116 F.3d 1351, 1352 (10th Cir. 1997). Because the Court has found that removal was improper, it has discretion to award costs. Suder, 116 F.3d at 1352. In deciding whether to award costs, "the key factor is the propriety of defendant's removal." Excell, Inc. v. Sterling Boiler Mech., Inc., 106 F.3d 318, 321 (10th Cir. 1997) (citing Daleske v. Fairfield Cmtys., 17 F.3d 321, 324 (10th Cir.), cert. denied, 511 U.S. 1082 (1994)). The Court "does not have to find that the state court action has been removed in bad faith as a prerequisite to awarding attorney fees and costs under § 1447(c)." Excell, 106 F.3d at 321 (citing Daleske, 17 F.3d at 324-25).
Morrison argues that it removed the case in good faith and that it had a "fair basis" for seeking removal. Morrison acknowledges, however, that its notice of removal was defective. Morrison has not explained why it ignored the requirements that all defendants must consent to removal and that a notice of removal filed by fewer than all defendants must explain the absence of any co-defendants. Based on Morrison's failure to follow these well-established principles pertaining to removal of a state court case, the Court finds that an award of costs and expenses is appropriate.
IT IS THEREFORE ORDERED that Plaintiff's Motion To Remand (Doc. #8) filed March 7, 2001 be and hereby is SUSTAINED. This case is REMANDED to the District Court of Wyandotte County, Kansas.
IT IS FURTHER ORDERED that pursuant to 28 U.S.C. § 1447(c), Morrison shall pay the just costs and actual expenses, including attorneys' fees, which plaintiff incurred as a result of the improper removal. The procedure set forth in D. Kan. Rule 54.2 shall apply to this issue, except that the time deadlines shall be as follows. On or before April 20, 2001, plaintiff shall file a fee application which itemizes all fees and costs for which it seeks reimbursement. If the parties reach agreement regarding the fee request, they shall file an appropriate stipulation on or before May 18, 2001. If they are unable to agree, plaintiff on or before May 21, 2001 shall file the required statement of consultation and supporting memorandum. Defendant may respond on or before June 5, 2001 and plaintiff may reply on or before June 15, 2001.