Daniel Lund III | Phelps Dunbar
Hold the pickles, hold the lettuce?
You can even hold the service… or at least proof of it!
In a dispute over the construction of a Burger King restaurant in Tupelo, Mississippi, a state court suit by the owner against its general contractor and architect was removed to federal court by one of the defendant parties, on the basis of the diversity of citizenship of the defendant parties from the plaintiff, per 28 U.S.C. § 1331(a).
For its part, plaintiff, upon achieving service of its state court complaint against the various defendants, filed a proof of service as to the party which sought to remove the case, but not as to the other defendants (even though the other defendants were served). Once the case was removed to federal court and after the deadline for removal has passed, plaintiff sought to have the matter remanded based on the lack of the consent of the entirety of the defendant group to the removal, in accordance with 28 U.S.C. § 1446 (“When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”).
Interestingly, the plaintiff’s notice of remand was filed one day before the nonconsenting defendants filed into the federal court record their written consent to the removal. The plaintiff urged that this consent was untimely.
The defendant which had filed the removal argued that the failure of plaintiff to file in the state court record proof of service on the remaining defendants resulted in that defendant being “unaware” that the service had occurred and that, therefore, the failure of those defendant parties “to join in or consent to the removal [was] excusable.” The removing defendant rested its arguments on a Louisiana federal court decision holding that “counsel for the removing defendant should be able to rely on the state court record when determining whether to seek other defendants’ consent to removal.”
The Mississippi federal court disagreed, relying on more recent federal court precedent, one such case holding that “a removing defendant must exercise reasonable diligence, beyond a glance at the docket, in attempting to discern the status of service on codefendants and obtain unanimous consent.” The Mississippi court continued:
“[T]he Court finds that more is required than simply checking the state court docket. This is particularly true when considering the applicable statutory language, which mandates that ‘all defendants who have been properly joined and served must join in or consent to the removal of the action.’ 28 U.S.C. § 1446(b)(2)(A). As emphasized by the [Doe v. McGuire, 289 F. Supp. 3d 266 (D. Mass. 2018)] court, ‘[t]he removal statute does not require the consent of “all defendants whose proof of service is on file”; rather, it requires the consent of “all defendants who have been properly joined and served.”’”
The case was remanded to state court.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.