T.S. ELLIS, III, District Judge.
At issue on plaintiff's motion to remand this removed diversity action is whether the removing defendant adequately complied with the removal statute (28 U.S.C. § 1446(b)(2)(A)) where, as here, the notice of removal states that "all other defendants . . . have joined in this notice of removal, as evidenced by the joinders," and one defendant filed evidence of her consent to removal within the thirty (30) day removal period and the other three did not.
For the reasons that follow, settled circuit precedent confirms that the notice of removal falls short of unambiguously stating that all defendants consented to removal. Therefore, plaintiff's motion to remand must be granted because there is doubt as to whether every defendant timely consented to removal.
Plaintiff BRAVO! Facility Services, Inc. is an environmental services corporation with its principal place of business in Vienna, Virginia.
On July 1, 2012, plaintiff entered into a five-year contract with defendant Kaiser to perform a variety of environmental services at Kaiser's facilities in the Mid-Atlantic region. This contract was scheduled to expire on June 30, 2017. Approximately nine months before the expiration of the contract, Kaiser terminated plaintiff's services and replaced the plaintiff with defendant BCI and ABM, a non-party company that was also one of plaintiff's competitors.
Plaintiff alleges that as early as 2015, defendants Kaiser, Blades, Adams, Vought and BCI conspired to replace plaintiff as Kaiser's environmental service provider. As part of this alleged conspiracy, plaintiff claims the defendants planted defendant Vought as a senior employee in plaintiff's company in order to steal plaintiff's valuable proprietary information and to recruit plaintiff's employees to work for BCI and ABM.
In February 2017, Plaintiff sued the five defendants in the Fairfax County Circuit Court, alleging eight causes of action:
Plaintiff served all defendants with a summons and copy of the state court complaint. Specifically, defendants Vought and Adams were served on March 4, 2017; defendants BCI and Kaiser were served on March 8, 2017; and defendant Blades was served on March 9, 2017.
On April 6, 2017, defendant BCI removed this case from Fairfax County Circuit Court. In its notice of removal, defendant BCI asserted that federal diversity jurisdiction exists on the grounds that (i) defendants' state(s) of citizenship are different from the plaintiff's state of citizenship, and (ii) the amount in controversy exceeds $75,000. Id. Defendant BCI also represented in its notice of removal that "[a]ll other defendants who have been served with [the] summons and Complaint have joined in this notice of removal, as evidenced by the Joinders of defendants Kaiser Foundation Health Plan of the Mid-Atlantic, Inc., Troy A. Blades, Osmond Adams, and Marie I. Vought." Id. Only defendant Vought, however, actually filed a written joinder or notice of consent within the 30-day time period for removal. Defendants Kaiser, Adams and Blades did not file a written consent to BCI's notice of removal until April 12, 2017, five days after the removal deadline.
On April 12, 2017, plaintiff filed a motion to remand this matter to state court, arguing that (i) defendant BCI's notice of removal did not unambiguously state that the other defendants consented to removal, and (ii) defendants Kaiser, Blades and Adams failed to consent to removal within the 30-days permitted by 28 U.S.C. § 1446.
Plaintiff does not dispute that removal jurisdiction exists; the parties are of diverse citizenship and the amount in controversy exceeds $75,000. Instead, plaintiff contends that removal is procedurally deficient because the removal notice does not unambiguously reflect all of the defendants' consent to removal and not all defendants ultimately filed timely individual consents to removal.
Although the statute governing removal makes clear that "all defendants who have been properly joined and served must join in or consent to the removal of the action," Congress has not prescribed the manner in which a removing defendant or the additional defendants must manifest their requisite consent to removal. See 28 U.S.C. § 1446(b)(2)(A). Nor has the Supreme Court addressed this point. As it happens, however, this issue has arisen in the lower courts where it has resulted in a circuit split regarding the procedures for accomplishing removal in multi-defendant cases. The Second, Fifth and Seventh Circuits do not permit a removing defendant to represent another codefendant's consent to removal.
To be sure, there are arguments to be made with respect to both sides of this split,
Thus, the question presented here is whether, as Mayo requires, BCI's notice of removal unambiguously states that defendants Kaiser, Vought, Blades and Adams consent to removal. The issue is a close one. The portion of the notice of removal which states "[a]ll other defendants who have been served with [the] summons and Complaint have joined in this notice of removal," is clear and unambiguous and would have easily satisfied the Mayo standard had the notice of removal said nothing else. But as it happens, BCI's notice of removal does say more: it adds the following phrase: "as evidenced by the Joinders of defendants Kaiser Foundation Health Plan of the Mid-Atlantic, Inc., Troy A. Blades, Osmond Adam, and Marie I. Vought." This additional statement, in the circumstances of this case, injects ambiguity into the removal notice.
The ambiguity arises because the phrase "as evidenced by the Joinders of defendants . . ." gives rise to more than one meaning. It may be read, as defendants propose, to mean that all defendants consented to removal and that further evidence of their consent could be provided upon request. Alternatively, (and perhaps more plausibly) the phrase may be read to mean that the other defendants tentatively consented to removal, but would confirm or verify their consent to removal by timely providing or filing separate notices of consent to removal.
In sum, the phrase is ambiguous as to whether the defendants' consent to removal is established by the removing defendant's counsel's statement in the removal notice or is instead to be "evidenced by the Joinders of defendants. . . ." Given this ambiguity, the removal notice does not pass muster under Mayo to establish the requisite consent to removal by all defendants. Of course, defendants could have rescued their removal effort had all defendants timely filed the joinders as advertised in the removal notice. They failed to do so.
Here, it is undisputed that April 8
For the reasons set forth above, BCI's notice of removal is ambiguous as to whether all of the defendants consented to removal. Because the notice of removal can plausibly be read to require the non-removing defendants to file written notices of consent, they were required to do so to ensure that they unambiguously and unanimously consented to removal. Because defendants Kaiser, Blades and Adams failed to file timely evidence of their consent to removal, the rule of unanimity has not been satisfied and remand is appropriate.
An appropriate order will issue granting plaintiff's motion to remand.
The Clerk of Court is directed to send a copy of this Memorandum Opinion to all counsel of record.