Knickerbocker v. Chrysler Corp.
Decision Date | 16 January 1990 |
Docket Number | No. 89-CV-73601-DT.,89-CV-73601-DT. |
Citation | 728 F. Supp. 460 |
Parties | Karen KNICKERBOCKER, as Administrator of the Estate of Brad Knickerbocker, Deceased, Plaintiffs, v. CHRYSLER CORPORATION and Jonick & Co., Inc., Defendants. |
Court | U.S. District Court — Western District of Michigan |
Richard M. Goodman, Detroit, Mich., for plaintiffs.
Craig L. John, Bloomfield Hills, Mich., for Chrysler Corp.
Michael J. Hutchinson, Detroit, Mich., for Jonick.
ORDER DENYING DEFENDANTS' MOTIONS FOR RECONSIDERATION
On January 2, 1990, the court entered an order remanding this case to state court because defendant Jonick's removal notice was defective. The matter is presently before the court on defendants' January 10, 1990, motions for reconsideration.
Local Court Rule 17(m)(3) states:
Generally, ... motions for rehearing or reconsideration which merely present the same issues ruled upon by the Court ... shall not be granted. The movant shall not only demonstrate a palpable defect by which the Court and the parties have been misled but also show that a different disposition of the case must result from a correction thereof.
In the present case, defendants have failed to demonstrate a palpable defect in the reasoning supporting the court's order of remand, or shown that the order was otherwise incorrect. Accordingly, defendants' motions for reconsideration must be denied.
Plaintiff commenced this action in Wayne County Circuit Court on November 16, 1989. On December 13, 1989, defendant Jonick filed a removal petition, in which it asserted that "the Chrysler Corporation has been served with a copy of the Summons and Complaint and does not object to the removal of this action and once removal is effected, they would be willing to litigate this matter in Federal Court." On December 15, 1989, Jonick filed an amended removal petition, which contained the same representation. Although it had been served at the time Jonick filed its initial and amended removal notices, Chrysler did not sign or in any way officially join in either removal notice, or file a removal notice of its own within the 30-day period prescribed by 28 U.S.C. § 1446(b).
Defendants argue that a removal notice need not be signed by all served defendants in order to satisfy the filing requirement of 28 U.S.C. § 1446. Defendants assert that Chrysler's informal consent is sufficient. This view is not supported by the weight of the case authority. Rather, the court's review of the reported cases reveals the majority view to be that although a signing of the removal notice is not required, each defendant must nonetheless join in or consent to the removal by way of "an official filing or voicing of consent." Godman v. Sears, Roebuck and Co., 588 F.Supp. 121, 124 (E.D.Mich.1984) ( ). See also, Fellhauer v. City of Geneva, 673 F.Supp. 1445, 1447 (N.D.Ill.1987) (); Knowles v. Hertz Equipment Rental Co., 657 F.Supp. 109, 110 (S.D.Fla.1987) () ; Clyde v. National Data Corp., 609 F.Supp. 216, 218 (N.D.Ga. 1985) (); Mason v. International Business Machines, Inc., 543 F.Supp. 444, 446 (M.D.N.C.1982) () ; Albonetti v. GAF Corporation, 520 F.Supp. 825, 828 (S.D.Tex.1981) () ; Wallis v. Southern Silo Company, Inc., 369 F.Supp. 92, 93-94 (N.D. Miss.1973) () .
In the present case, Chrysler did nothing to officially indicate its joinder in or consent to Jonick's removal of this case within the 30-day period prescribed by 28 U.S.C. § 1446(b). Under the case authority cited above,1 Jonick's unsupported assertion that Chrysler "does not object to the removal" clearly fails to satisfy this statutory filing requirement. It is also clear that "failure to comply with the provisions concerning removal generally constitutes an adequate ground for remand to state court." Mason v. International Business Machines, Inc., 543 F.Supp. 444, 445 (M.D.N.C.1982). See also, Reed v. Chesney, 709 F.Supp. 792, 794 (E.D.Mich. 1989) ( ); P-Nut Carter's Fireworks, Inc. v. D.T. Carey, 685 F.Supp. 952, 953 (D.S.C. 1988) (same); Fellhauer v. City of Geneva, 673 F.Supp. 1445, 1447 (N.D.Ill.1987) () ; Adams v. Aero Services International, Inc., 657 F.Supp. 519, 521 (E.D.Va.1987) () ; Jetstar Inc. v. Monarch Sales & Service Company, 652 F.Supp. 310, 312 (D.Nev.1987) ( ). Since Chrysler clearly failed to comply with the filing requirement of 28 U.S.C. § 1446, the...
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