Opinion
Civil Action No. 06-cv-02603.
August 15, 2006
Stephen Levin, Esquire Jonathan K. Moore, Esquire Attorneys for Plaintiff.
LAMM RUBENSTONE LESAVOY BUTZ DAVID LLC Counsel for Sovereign Bank Trevose, PA.
PLAINTIFF'S RESPONSE TO SUPPLEMENTAL BRIEF OF DEFENDANTS CONRAD RONCATI, JR, MICHAEL CARIDI, CHARLES CERULLO, JOSEPH ROTUNDE AND RICHARD ROTUNDE
The Defendants filed a Supplemental Brief in opposition to the Plaintiff's Motion for Remand wherein they rely on a Sixth Circuit case in arguing that because the non-removing Defendant subsequently opposed Plaintiff's Motion to Remand and because the removing attorney was bound by Rule 11 when he represented that he had the consent of the non-removing Defendant, this Court should conclude that there is sufficient evidence of consent to removal such that the Plaintiff's Motion should be denied. Because the case cited by the Defendants is directly at odds with the cases of this Circuit and is not only distinguishable but is not binding upon this Court in any event, it is respectfully submitted that this matter must be remanded case back to the Court of Common Pleas of Bucks County, Pennsylvania.
A. ARGUMENT
In its Order dated August 1, 2006, this Court cited a number of cases from this Circuit that support the conclusion that all Defendants are required to consent to a notice of removal, that a representation by some Defendants alleging the consent of the others is not sufficient, and that a timely filed written document by each Defendant evidencing their clear and unambiguous consent is necessary. This Court also cited a Sixth Circuit opinion, Brierly v. Alusuisse, 184 F.3d 527 (6th Cir.), for the proposition that the last served Defendant rule has been applied in a manner whereby an earlier served Defendant whose time for removal had run could file a formal written consent within thirty days of the last served Defendant. Immediately after citing Brierly, this Court went on to note that with the exception of Lewis v. Rego, none of the cases cited in the Order constitute binding authority on this Court.
Following the entry of this Court's Order, the Defendants filed their Supplemental Brief wherein they assert that this Court relied in substantial part on the Sixth Circuit's holding inBrierly, and conclude that another Sixth Circuit opinion, inHarper v. Autoalliance International, Inc., 392 F.3d 195 (6th Cir. 2004), should be particularly persuasive. The Defendants argue that Harper supports their claim that the representation made by counsel for the removing Defendants regarding the consent of the non-removing party, coupled with the fact that the non-removing Defendant subsequently opposed the Plaintiff's Motion for Remand, serves as sufficient evidence of the consent of all Defendants to the Notice of Removal. While the Defendants maintain that the facts of this case "fall squarely within Harper", the Plaintiff disagrees, as the Harper court concluded that the non-removing defendant did comply with the rule of unanimity because "he filed his answer within 30 days of being served with the complaint . . . [wherein he] asserts that the proper jurisdiction and venue for this case is the U.S. District Court for the Eastern District of Michigan, Southern Division." See Harper, 392 F.3d at 202. Because the non-removing defendant in Harper filed an Answer within thirty days of service alleging Michigan Federal Court jurisdiction, it cannot be argued that a timely-filed document of record evidencing his consent was lacking. Indeed, the Defendant inHarper, unlike the non-removing Defendant in the instant case, filed a pleading that clearly and unequivocally established its consent. Accordingly, it is submitted that the portions of theHarper opinion quoted by the Defendant are dicta, and are not properly read as supporting the conclusion for which they are proffered.
To the extent that the Defendants are correct in their reading of Harper, and the Sixth Circuit has concluded that it is sufficient if the attorney of one or more Defendants represent that the consent of other named Defendants has been obtained, and those other Defendants later oppose the motion to remand, this is nevertheless not the standard that has been applied by the courts of this Circuit. As noted in Plaintiff's Motion to Remand and Plaintiff's Reply Brief in Response to Memoranda of Law in Opposition to Plaintiff's Motion for Remand, this court has previously held that there must be some timely filed document from each Defendant or person acting on behalf of such Defendant which document clearly evidences their consent to removal. See Morganti v. Armstrong Blum Manufacturing Co., 2001 WL 283135, at *2 (E.D. Pa. 2001) and Ogletree v. Barnes, 851 F.Supp. 184, 186 (E.D. Pa. 1994). Indeed "[i]t is well-settled in this district that one Defendant may not speak for another in filing a notice of removal." Green v. Target Stores, Inc., 305 F.Supp.2d 448, 450 (E.D. Pa. 2004). Rather "[e]ach consenting Defendant must either sign the notice of removal, file its own notice of removal, or file a written consent or joinder to the original notice with the court." Southwick v. Yale Materials Handling Corp., 1997 WL 381771, at *1 (E.D. Pa. 1997). It is undisputed that GF II/Palisades LLC failed to sign the notice of removal, file its own notice of removal, or file a written consent or joinder within thirty days of service on the last served Defendant. This failure is fatal to the Defendants' Notice of Removal, notwithstanding anything the Sixth Circuit may have to say on the subject. Based upon the foregoing, Sovereign Bank maintains that removal of the instant case was improper, that this matter must be remanded back to the Court of Common Pleas of Bucks County, Pennsylvania, and that the Plaintiff should be awarded counsel fees and costs pursuant to 28 U.S.C. § 1447(c).