Griffioen v. Cedar Rapids & Iowa City Ry. Co.

Decision Date07 May 2015
Docket NumberNo. 13–3170.,13–3170.
PartiesMark GRIFFIOEN, individually and on behalf of all others similarly situated; Joyce Ludvicek, individually and on behalf of all others similarly situated; Mike Ludvicek, individually and on behalf of all others similarly situated; Sandra Skelton, individually and on behalf of all others similarly situated; Brian Vanous, individually and on behalf of all others similarly situated, Plaintiffs–Appellants v. CEDAR RAPIDS AND IOWA CITY RAILWAY COMPANY; Alliant Energy Corporation; Union Pacific Railroad Company; Union Pacific Corporation; Hawkeye Land Co. ; Hawkeye Land II Co.; Hawkeye Land NFG, Inc.; Stickle Enterprises, Ltd.; Midwestern Trading, Inc.; Midwest Third Party Logistics, Inc., also known as Midwest 3PL; Stickle Grain Co.; Stickle Warehousing, Inc.; Rick Stickle; Marsha Stickle, Defendants–Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Russell George Petti, argued, La Canada, CA, (Curtis Brooks Cutter, Eric J. Ratinoff, John R. Parker, Jr., Sacramento, CA, Sam Sheronick, Cedar Rapids, IA, Amy E. Keller, Chicago, IL, on the brief), for PlaintiffsAppellants.

Alice Elizabeth Loughran, argued, Washington, DC, (Charles Thomas Hvass, Jr., David Donna, Minneapolis, MN, Bruce E. Johnson, West Des Moines, IA, Charles Glaston Cole, Washington, DC, on the brief), for Union Pacific Railroad Company and Union Pacific Corporation.

Eric D. Miller, argued, Seattle, WA, (John Michael Devaney, Washington, DC, Rhett P. Martin, David E. Jones, Madison, WI, on the brief), for Cedar Rapids and Iowa City Railway Company and Alliant Energy Corporation.

Jeffrey C. McDaniel, argued, Rock Island, IL, for Hawkeye Land, Co., Hawkeye Land II Co., Hawkeye Land NFG, Inc., Stickle Enterprises, Ltd., Midwestern Trading, Inc., Midwest Third Party Logistics, Inc., a/k/a Midwest 3PL, Stickle Grain Co., Stickle Warehousing, Inc., Rick Stickle and Marshal Stickle's.

Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.

Opinion

WOLLMAN, Circuit Judge.

Mark Griffioen, Joyce and Mike Ludvicek, Sandra Skelton, and Brian Vanous (collectively, the Griffioen Group) filed an action seeking recovery for property damage that occurred during the June 2008 flooding of the Cedar River. They now appeal from the district court's order and judgment denying their motion to remand the action to state court, granting the motion for judgment on the pleadings filed by Union Pacific Railway Company and Union Pacific Corporation (collectively, Union Pacific), and dismissing the claims against all defendant-appellees (collectively, the Rail Group). We vacate the order and judgment and remand for the action to be remanded to state court.

I.

The Griffioen Group brought a putative class action in Iowa state court against Union Pacific, Cedar Rapids and Iowa City Railway Co. and Alliant Energy Corp. (collectively, CRANDIC), and ten additional defendants (collectively, the Stickle Defendants),1 alleging negligence, strict liability for abnormally dangerous or ultra-hazardous activity, and strict liability based on violations of Iowa Code sections 468.148 and 327F.2. They allege that the Rail Group's failure to properly build and maintain railway bridges over the Cedar River caused or exacerbated the 2008 flood. They also allege that the decision of some members of the Rail Group to attempt to stabilize the bridges by weighing them down with railcars filled with ballast caused or exacerbated the flooding of their properties, either because the bridges collapsed and effectively dammed the river and blocked drainage, or because the railcars on bridges that did not collapse blocked the free flow of the river and diverted water into low-lying areas.

CRANDIC was served with the complaint on June 7, 2013. The Stickle Defendants were served on June 8, 2013, and Union Pacific was served on June 10, 2013. On July 2, 2013, Union Pacific filed a Notice of Removal that asserted federal-question jurisdiction arising from the complete preemption created by the Federal Railway Safety Act (FRSA). The notice stated, “Undersigned counsel ... have contacted attorneys for the other named co-defendants in this matter, and there is no objection to removal.” Accompanying the affidavit was a local rule certification that stated, “The co-defendants have given their consent to the removal of this action.” On July 10, 2013, CRANDIC filed its notice of consent to removal. The Stickle Defendants, however, did not file a notice of consent to removal until July 31, 2013—more than 30 days after Union Pacific was served with the complaint. By that time, the Griffioen Group had filed a motion to remand, arguing that the FRSA does not completely preempt their claims and that removal was improper because not all defendants had timely consented. CRANDIC, the Stickle Defendants, and Union Pacific all filed briefs in opposition to the motion to remand, arguing that removal was proper. The Stickle Defendants' brief in opposition stated that their counsel had told Union Pacific that they had “no objection to removal.” In their briefs in opposition, the Rail Group abandoned the FRSA argument, contending instead that the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. §§ 701 –727, 10101 –16106, completely preempted the Griffioen Group's state-law claims, thereby giving the federal court jurisdiction. Union Pacific also filed a motion for judgment on the pleadings.

The district court granted Union Pacific's motion for judgment on the pleadings and denied the Griffioen Group's motion to remand, concluding that there was timely consent to removal and that the court had subject-matter jurisdiction because the ICCTA completely preempted the state-law claims. It ordered that the case be transferred to the Surface Transportation Board (STB), the agency tasked with administering the ICCTA.

II.

We first consider whether consent to removal was timely. Griffioen Group contends that the Stickle Defendants' consent was invalid and that under 28 U.S.C. § 1446, each co-defendant was required either to sign the notice of removal or to file for itself a written indication of its consent within 30 days of the date of service upon the removing defendant, neither of which the Stickle Defendants did.

The interpretation of § 1446 is a question of law that we review de novo. See Marano Enters. of Kan. v. Z–Teca Rests., L.P., 254 F.3d 753, 755 (8th Cir.2001). The first paragraph of § 1446(b) requires that a defendant's notice of removal “be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). The second paragraph, as amended in 2011, requires that “all defendants who have been properly joined and served must join in or consent to the removal of the action” and that each defendant “shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.” Id. § 1446(b)(2)(A)-(B).

The Supreme Court long ago established, under a predecessor removal statute, that removal based on a federal question requires the unanimous consent of all defendants. See Chi., Rock Island, & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900). That rule persists to this day and has been codified in the 2011 amendments to § 1446. See Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub.L. 112–63, § 103, 125 Stat. 758, 760 (codified as amended at 28 U.S.C. § 1446 ). Because neither the Supreme Court nor Congress has clarified what form consent must take, however, the circuits have split on this issue. The Fourth, Sixth, and Ninth Circuits have held that a statement in one defendant's timely removal notice that its codefendants consent is sufficient. Mayo v. Bd. of Educ., 713 F.3d 735, 742 (4th Cir.2013) ; Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir.2009) ; Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195, 201–02 (6th Cir.2004). The Seventh and Fifth Circuits, on the other hand, have suggested that in most situations a defendant may not give notice of consent on another defendant's behalf. See Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir.1994), abrogated on other grounds by Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) ; Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n. 11 (5th Cir.1988) (allowing such consent only by the defendant itself or by another with authority to formally act on the defendant's behalf).

We have not directly addressed the question whether a representation in a removing defendant's notice stating that its codefendants consent can satisfy § 1446's unanimity requirement. In Pritchett v. Cottrell, Inc., we set forth the basic rule that in order to meet the consent requirement, there must ‘be some timely filed written indication from each served defendant,’ or from some person with authority to act on the defendant's behalf, indicating that the defendant ‘has actually consented’ to the removal.” 512 F.3d 1057, 1062 (8th Cir.2008) (quoting Getty Oil, 841 F.2d at 1262 n. 11 ). Pritchett thus left open the possibility that the unanimity requirement could be met when the removing defendant gives notice of its codefendants' consent, presuming, of course, that the removing defendant has the authority to indicate consent on their behalf, and that its notice of removal is timely.2

It is true that we have specifically advised non-removing defendants who wish to consent to removal to “either sign the notice of removal or file a timely and unequivocal consent.” Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 933 (8th Cir.2012). Nevertheless, we have recognized that the written indication of consent can come in various forms, and we have been “disinclined to apply the...

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