Esposito v. Home Depot U.S.A., Inc.

• Decision Date: 30 December 2009
• Docket Number: No. 08-2115.,08-2115.
• Citation: 590 F.3d 72
• Parties: Robert ESPOSITO, Plaintiff, Appellant, v. HOME DEPOT U.S.A., INC., Black & Decker Inc., Dewalt Industrial Tool Co., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

590 F.3d 72

Robert ESPOSITO, Plaintiff, Appellant, v. HOME DEPOT U.S.A., INC., Black & Decker Inc., Dewalt Industrial Tool Co., Defendants, Appellees.

No. 08-2115.

United States Court of Appeals, First Circuit.

Heard June 2, 2009.

Decided December 30, 2009.

Thomas More Dickinson, with whom Law Office of Thomas M. Dickinson was on brief, for appellant.

C. Russell Bengtson, with whom Carroll Kelly & Murphy was on brief, for appellees.

Before LIPEZ and HOWARD, Circuit Judges, and WOODCOCK,^* District Judge.

HOWARD, Circuit Judge.

In this diversity action involving a products liability claim, Robert Esposito challenges the district court's decision to grant summary judgment to the defendants, Dewalt Industries, Black & Decker, and Home Depot. Esposito argues on appeal that the case was improperly removed to federal court and that the district court erroneously precluded his expert witness. We reject the argument based on improper removal, but we agree that, in the circumstances of this case, the expert witness should not have been precluded. Accordingly, we vacate the district court's entry of summary judgment and remand for further proceedings.

I. Facts

In March 2003, while he was operating a power saw manufactured by Dewalt Industries ("Dewalt"), Robert Esposito's left hand came into contact with the saw's unguarded blade. The saw severed three of his fingers, none of which could be reattached. In March 2006, Esposito filed a complaint in Rhode Island state court against Dewalt, Black & Decker (the company that packaged the saw), and Home Depot (the company that sold the saw). Esposito claimed that the saw was defective because its blade guard did not engage properly and that the defendants were jointly and severally liable for his injury. Home Depot was served with the complaint on March 17. The other defendants were served on March 21.

On April 3, two of the defendants, Dewalt and Black & Decker, filed a notice of removal in the United States District Court for the District of Rhode Island. On April 13, the other defendant, Home Depot, filed its answer in federal court.

On May 3, Esposito moved to remand the matter back to the state court. In support of his motion, he claimed a defect in the removal process in that Home Depot had not consented to removal within the thirty-day period as required by statute. See 28 U.S.C. § 1446(b). That failure, Esposito claimed, breached the unanimity requirement: that each defendant in a multi-defendant case consent to removal within thirty days of receiving service. The defendants opposed Esposito's motion.

The district court denied the motion, concluding that Home Depot's answer, which had been filed in federal court within the thirty day period, constituted consent to removal under the circumstances. Esposito v. Home Depot U.S.A., Inc., 436 F.Supp.2d 343, 347 (D.R.I.2006).

In July 2006, the district court set pre-trial discovery and disclosure deadlines, including a deadline for the written disclosure of experts under Rule 26 of the Federal Rules of Civil Procedure. These deadlines were pushed back twice: first at the request of the defendants and second at the request of Esposito. The second extension required the parties to wrap up fact discovery by May 31, 2007; Esposito to disclose experts by June 21; and the defendants to disclose experts by July 14. Dispositive motions were due by August 16.

Operating under this revised timetable, the parties and their respective experts arranged to participate in a joint examination of the saw. At this examination, which took place on April 20, Steven Thomas inspected the saw on Esposito's behalf. Thomas's curriculum vitae had been sent to the defendants prior to this examination. When the time came to disclose Thomas as his expert, however, Esposito failed to do so. Instead, on August 1, he filed a motion requesting that the court further extend the relevant deadlines by ninety days. The defendants opposed Esposito's extension request and on August 3 they filed a summary judgment motion premised on the plaintiff's lack of an expert.

The magistrate judge denied Esposito's request for a further extension, and Esposito appealed this decision to the district court. Expressing reluctance, the district court nevertheless endorsed the magistrate judge's decision and denied Esposito's motion for an extension. The court recognized that the denial of the plaintiff's request for an extension amounted to a dispositive ruling, noting that "Both of the parties acknowledge that the decision to exclude [Esposito's] expert as a result of missing the discovery deadlines will, without much doubt, effectively dispose of the case." Nevertheless, the district court concluded that the denial of the extension, which precluded Esposito's expert, was justified. In so concluding, the district court noted that Esposito had failed to offer a legitimate reason for missing the deadline. The court also expressed its concern that lesser sanctions, such as the imposition of fines and costs, might "send the message that noncompliance or inattention to deadlines can be purchased for a price."

As predicted, the district court's ruling sounded the death knell for Esposito's case. The magistrate judge recommended that the district court grant the defendants' motion for summary judgment and the district court agreed, entering judgment for the defendants.¹ This appeal followed.

II. Discussion

We first examine the removal issue, turning then to the sanction question.

A. Removal

Under the removal statute, a defendant in a state court action may remove the action to federal court so long as the plaintiff could have originally filed the action in federal court. See 28 U.S.C. § 1441 (permitting removal of cases where the federal court would have had "original jurisdiction"). Where the action involves multiple defendants, however, the right of removal is subject to the so-called "unanimity requirement." See Chicago, Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 247-48, 20 S.Ct. 854, 44 L.Ed. 1055 (1900). This requirement is at issue in this case.

The unanimity requirement is derived from 28 U.S.C. § 1446, which sets forth the procedure for removing a state action to federal court. Loftis v. UPS, 342 F.3d 509, 516 (6th Cir.2003). In a case where a plaintiff has sued multiple defendants in state court, an "all for one and one for all" rule applies with respect to removal. See Chicago, Rock Island & Pac. Ry. Co., 178 U.S. at 247-48, 20 S.Ct. 854. That is, subject to a few exceptions not applicable here, all defendants must consent to remove the case for removal to be effected. Id.; see also 11C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3731 (3d. ed. 1998) ("Ordinarily, all of the defendants in the state court action must consent to the removal....").

The requirement of unanimity serves the interests of plaintiffs, defendants and the judiciary. Plaintiffs are advantaged, because, were the right to removal an independent rather than joint right, defendants could split the litigation, forcing a plaintiff to pursue its case in two separate forums. See Sansone v. Morton Mach. Works, Inc., 188 F.Supp.2d 182, 184 (D.R.I.2002) (citing Getty Oil Corp., Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n. 11 (5th Cir.1988)). Defendants also stand to benefit from the requirement, as it precludes one defendant from imposing his choice of forum on a co-defendant. Id. (citation omitted). And the unanimity requirement prevents the needless duplication of litigation, thereby preserving court resources and eliminating the unattractive prospect of inconsistent state and federal adjudications. Spillers v. Tillman, 959 F.Supp. 364, 369 (S.D.Miss. 1997).

The defect in the removal process resulting from a failure of unanimity is not considered to be a jurisdictional defect, and unless a party moves to remand based on this defect, the defect is waived and the action may proceed in federal court. See Loftis, 342 F.3d at 516-17; see also 11C Wright, Miller & Cooper, Federal Practice and Procedure § 3739 ("After the expiration of the thirty-day period following the filing of the removal notice, the right to object to nonjurisdictional defects in the removal process is considered waived.").

Here, Esposito timely objected to the perceived failure of the defendants to comply with the unanimity requirement. Before the district court, as he does now, Esposito argued that Home Depot failed to consent to removal within the statutorily prescribed thirty-day period. The district court rejected this argument. As noted above, it concluded that Home Depot's answer in federal court, filed within the applicable thirty day period, constituted consent to removal under the circumstances of the case. Our review of this conclusion is de novo. Loftis, 342 F.3d at 514.

Although the unanimity requirement itself is well-settled, the various ways that it may be satisfied are less so. We have not spoken directly to the question, but a number of guideposts do exist.

The removal statute itself speaks generally to the manner of removal. In relevant part, section (a) provides that:

[A] defendant or defendants desiring to remove any civil action ... from a State court shall file in the [appropriate] district court of the United States a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

28 U.S.C. § 1446(a).

Consistent with this statute, a defendant may express its desire to remove by signing the notice of removal filed by co-defendants. But, the consensus among courts is that conduct less explicit than joining the notice will suffice. See Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008) ("[E]ach defendant...