Opinion
CV 00-99-M-DWM
September 20, 2000
James A. Manley, Manley O'Rourke-Mullins, Polson, MT, Michael T. Lewis, Christopher E. Kittell, Lewis Lewis, Ann L. Modine, Pauline Schuler Lewis for plaintiff Tina M. Hanken.
William O. Bronson, Smith, Walsh, Clarke Gregoire, Great Falls, MT, for defendants Credit Bureau of Kalispell, Bank One NA, Bank One Columbus, NA, and First USA Bank, NA.
Tracy A. Axelberg, Christensen, Moore, Cockrell, Cummings Axelberg, Kalispell, MT, Mara McRea, Brenton S. Bean, Kilpatrick Stockton, for defendants Equifax Credit Information Services, Inc., and John Does, 1 through 10.
ORDER
Plaintiff filed this action against Defendants Credit Bureau of Kalispell, Equifax, Bank One, and First USA Bank in the Montana Twentieth Judicial District Court, Lake County. On June 12, 2000, Equifax filed a Notice of Removal. Plaintiff and Defendants Bank One and First USA Bank now move to remand the case. For purposes of this Order, I assume, without deciding, that the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., is the basis for federal jurisdiction.
Generally, all defendants must join in a notice of removal. 28 U.S.C. § 1441(a); Chicago, Rock Island Pac. Ry. Co. v. Martin, 178 U.S. 245, 248 (1900); Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir.), cert. denied, 199 S.Ct. 510 (1998). If all defendants do not join, the action cannot be removed. Hewitt v. City of Stanton, 798 F.2d 1232, 1232 (9th Cir. 1986) (per curiam) (citing 28 U.S.C. § 1446 (b)).
The general rule is subject to three exceptions, one of which is that a defendant who was not served in the state court action need not join in removal:
Where there is a non-separable controversy with respect to several . . . defendants, one of them may remove the cause, although the other defendants have not been served with process and have not appeared. In such a case . . . the reason for the rule is stated to be that the defendant not served may never be served, or may be served after the time has expired for the defendant who has been served to apply for a removal, and unless the latter can make an effective application alone, his right to removal may be lost.Pullman Co. v. Jenkins, 305 U.S. 534, 540-41 (1939) (internal citations omitted), citing Community Bldg. Co. v. Maryland Cas. Co., 8 F.2d 678, 678-79 (9th Cir. 1925). See also Schwarzer, Tashima, Wagstaffe, Federal Civil Procedure Before Trial § 2:977, at 2D-175 (2000); Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1429 (9th Cir. 1984),superseded in part by statute, Ethridcre v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988).
Equifax argues that, because Credit Bureau of Kalispell joined in the Notice of Removal on July 14, 2000, all defendants who were served in the state court action joined. Hanken argues that Credit Bureau's joinder was ineffective because it was filed one day after the thirty-day time limitation of 28 U.S.C. § 1446 expired. Hanken is correct. See Schwarzer, Tashima Wagstaffe, Federal Civil Procedure Before Trial § 2:1007.5, at 2D-182.
Equifax protests that procedural defects in removal may be cured by amendment. See id. § 2-995, at 2D-179 (citing Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212-13 (9th Cir. 1980)); see also Eltman v. Pioneer Communications of Am., Inc., 151 F.R.D. 311, 315-16 (N.D. Ill. 1993). However, in Fristoe, the plaintiff waived his objection to the untimely removal by failing to object on those grounds. See 615 F.2d at 1212-13. Here, the plaintiff has preserved her objection.
In Eltman, the court dealt with a removing defendant's failure to explain why all defendants had not joined in the Notice of Removal. The defendants who did not join, PCA and PEC, later consented, and the court found that consent by all defendants cured the removal defect. 151 F.R.D. at 315-16. Here, not all defendants have joined. Thus, neitherFristoe nor Eltman are applicable to the facts of this case, where plaintiff has timely moved to remand and later-served defendants resist removal.
Moreover, Equifax and Credit Bureau of Kalispell failed to respond to the motion for remand filed by Bank One NA and First USA Bank on August 18, 2000. The second paragraph of 28 U.S.C. § 1448 implies that any defendant who is served after removal may refuse to join in the removal and move to remand. The Supreme Court has noted that this paragraph "explicitly reserves the unserved defendant's right to take action (move to remand) after service is perfected." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 355 n. 6 (1999). The general rule requiring unanimity therefore applies even to defendants not served until after the initial thirty-day period for motions to remand has expired.
In view of the untimeliness of the initial removal, the newly served defendants' refusal to consent to removal, and the removing defendants' failure to respond to the newly served defendants' motion to remand, remand is necessary.
Accordingly, IT IS HEREBY ORDERED that:
• Plaintiff Hanken's motion to remand (dkt #13) is GRANTED;
• Defendant Bank One's motion to remand (dkt #19) is GRANTED; and
• this case is REMANDED to the Twentieth Judicial District, Lake County. The deadlines established in the Order of August 2, 2000, and the preliminary pretrial conference scheduled for November 9, 2000, are VACATED.