Morganti v. Armstrong Blum Manufacturing Company, Civil Action No. 00-6343 (E.D. Pa. 3/19/2001)

• Decision Date: 19 March 2001
• Docket Number: Civil Action No. 00-6343.
• Parties: DANIEL MORGANTI and DONNA MORGANTI, h/w Plaintiffs, v. ARMSTRONG BLUM MANUFACTURING COMPANY, MARVEL INTERNATIONAL INC. and BROOKS MACHINE, INC. Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

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DANIEL MORGANTI and DONNA MORGANTI, h/w Plaintiffs, v. ARMSTRONG BLUM MANUFACTURING COMPANY, MARVEL INTERNATIONAL INC. and BROOKS MACHINE, INC. Defendants.

Civil Action No. 00-6343.

United States District Court, E.D. Pennsylvania.

March 19, 2001.

MEMORANDUM

LOWELL A. REED, JR., Senior Judge.

Plaintiffs Daniel Morganti and Donna Morganti have filed a motion to remand to the Court of Common Pleas of Philadelphia County pursuant to 28 U.S.C. § 1447 (c). Upon consideration of the motion of plaintiffs to remand (Document No. 5), motion of plaintiffs to strike the amended notice of removal of defendants (Document No. 13), the responses, replies, the pleadings and affidavits submitted therewith, both motions of plaintiffs will be granted.

Background

Plaintiffs Daniel and Donna Morganti filed this products liability action in the Court of Common Pleas of Philadelphia County on November 20, 2000. Defendant Armstrong Blum Manufacturing Company (hereinafter "Armstrong") was served with the complaint on November 27, 2000, and Defendant Brooks Machine, Inc. ("hereinafter Brooks") was served on November 21, 2000. On December 15, 2000, Armstrong filed a notice of removal with this Court. Brooks did not sign the notice of removal; however, Armstrong averred in its notice that Brooks had agreed to the removal of this case to federal court. Armstrong also attached to its notice a letter it had previously sent to Brooks which stated: "Please be advised that per our conversation, you had no objection to Armstrong Blum filing a Notice of Removal on behalf of Brooks Machine, Inc." (Armstrong's Resp., Ex. A.)

On January 11, 2001, more than thirty days after the service of the complaint to both defendants, Armstrong and Brooks jointly filed an amended notice of removal with this Court. Plaintiffs argue that the original notice of removal is procedurally defective because both defendants did not consent to removal and that the amended notice of removal should be stricken because it is time barred. Accordingly, plaintiffs request that this case be remanded to the Court of Common Pleas of Philadelphia County.

II. Analysis

A defendant may remove any civil action from a state court to a federal court. See 28 U.S.C. § 1441. A defendant's right of removal is a statutory one, and the procedures to effect removal must be followed. See Lewis v. Rego, 757 F.2d 66, 68 (3d Cir. 1985). Removal statutes are to be strictly construed, and all doubts are resolved in favor of remand. See Landman v. Borough of Bristol, 896 F. Supp. 406, 408 (E.D.Pa. 1995) (citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991)). Under 28 U.S.C. § 1446, a defendant must remove within thirty days of service of the complaint. The Court of Appeals for the Third Circuit has construed section 1446 to require that all defendants must join in the removal petition.¹ See Lewis, 757 F.2d at 68 (citing Northern Illinois Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 272 (7th Cir. 1982)); Davidson v. National R.R. Passenger Corp., Civ. A. No. 00-1226, 2000 U.S. Dist. LEXIS 8707, at *4 (E.D.Pa. June 9, 2000); Landman v. Borough of Bristol, 896 F. Supp. 406, 408 (E.D.Pa. 1995); Ogletree v. Barnes, 851 F. Supp. 184, 186 (E.D.Pa. 1994); Prowell v. West Chem. Prod., Inc., 678 F. Supp. 553, 554 (E.D.Pa. 1988). The so-called rule of unanimity provides that "all defendants must join in the notice of removal or otherwise consent to the removal." Ogletree, 851 F. Supp. at 186 (emphasis added). "A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1441.

The parties do not dispute that the rule of unanimity is applicable to this case. Rather, the issues in dispute are (1) whether Brooks properly consented to join in the notice of removal filed by Armstrong when it did not personally sign the notice or otherwise express its consent to this Court within thirty days of service of the complaint; and (2) whether the jointly filed amended notice of appeal is time barred.

It appears that the majority of courts both within and outside this circuit have held that consent to join in a notice of removal must be express, official and unambiguous.² See Getty Oil, Div. of Texaco, Inc. v. Ins. Co. of North Am., 841 F.2d 1254, 1262 (5th Cir. 1998); Parker v. Johnny Tart Enterprises, 104 F. Supp.2d 581, 584 (M.D.N.C. 1999); Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 (E.D.N.Y. 1998); Patel v. Moore, 968 F. Supp. 587, 590 (D.C. Kan. 1997); Ogletree, 851 F. Supp. at 188; Production Stamping Corp. v. Maryland Casualty Co., 829 F. Supp. 1074, 1076 (E.D. Wisc. 1993); Knickerbocker v. Chrysler Corp., 728 F. Supp. 460, 461-62 (E.D.Mich. 1990); but see Jasper v. Wal-Mart Stores, Inc., 732 F. Supp. 104, 105 (M.D.Fla. 1990) (court determined that "the petition must be signed by all defendants or the signer must allege consent of all defendants").

Armstrong argues that Brooks' method of joinder in the notice of removal is valid for four reasons. First, Armstrong contends that, relying on Ogletree, "under federal law, it is not necessary that all defendants sign the Petition for Removal." (Armstrong's Resp. to Pls' Mot. to Rem., ¶ 5). Armstrong failed, however, to fully articulate the holding of Ogletree. The Court determined that while all defendants do not have to sign the notice of removal, absent the signature of all defendants, "`some timely filed written document from each served defendant or its official representative, indicating that it has consented [to remove]'" is necessary to properly effectuate removal to a federal court. Ogletree, 851 F. Supp. at 188 (quoting Thompson v. Louisville Ladder Corp., 835 F. Supp. 336, 337 n. 3 (E.D.Tex. 1993)); see also Southwick v. Yale Materials Handling Corp., No. Civ.A. 97-383, 1997 WL 381771, at *1 (E.D.Pa. June 27, 1993).

Armstrong next argues that its own proclamation that Brooks had consented to the removal suffices to show the requisite intent. However, one defendant may not speak for the other when filing a notice of removal. See Landman, 896 F. Supp. at 408-09 (determining that one defendant's assertion of consent on behalf of a co-defendant is insufficient to establish the requisite intent). All defendants must instead, expressly, officially and unambiguously consent to the notice of removal. See Ogletree, 851 F. Supp. at 186 (quoting Getty Oil, Div. of Texaco, Inc. v. Ins. Co. of North Am., 841 F.2d 1254, 1262 (5th Cir. 1988)) (without such direct consent, "there would be nothing on the record to `bind' the allegedly consenting defendant"). Armstrong's statement in its notice of removal regarding Brooks' consent is therefore insufficient to establish that both defendants consented to join in the removal within the requisite thirty day period.

Armstrong also argues that this Court should find that Brooks consented because it filed an entry of appearance with this Court. However, filing an entry of appearance fails to constitute consent. See Southwick, 1997 WL 381771, at *2; See also Landman, (determining that answering a complaint does not qualify as consent). Filing an entry of appearance merely demonstrates that the defendant knew the case had been removed. See Southwick, 1997 WL 381771, at *2. Accordingly, I conclude that the entry of an appearance fails to establish the consent necessary to establish joinder in the notice of removal within the requisite period.

Finally, Armstrong would like this Court to accept an amended notice of removal filed after the thirty day statutory period has expired. It is well-settled in this district that "`the thirty-day limitation is mandatory and the court is without authority to expand it.'" Ogletree, supra, 851 F. Supp. at 190 (quoting Collins v. American Red Cross, 724 F. Supp. 353, 359 (E.D.Pa. 1989)); See also McManus v. Glassman's Wynnefield, Inc., 710 F. Supp. 1043, 1045 (E.D.Pa. 1989); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 529 (E.D.Pa. 1982).³ Armstrong asserts that courts have allowed defendants to file an amended notice of removal outside the thirty day removal period to cure technical defects. However, the cases cited by Armstrong do not support its argument.

Armstrong argues that the holding of Lewis v. Rego, 757 F.2d at 68, where the court allowed co-defendants to file an amended notice of removal after the expiration of the thirty day period, should control here. Armstrong, however, misstates the holding of this case. Lewis involved what is known as the non-service exception to the unanimity rule. The defendants there were allowed to file an amended notice of removal solely because they had yet to be served with the complaint when the original notice of removal was filed. See Id. at 68. That exception is inapplicable where both defendants involved here were served with the complaint before Armstrong filed the original notice of removal.

Armstrong also mistakenly relies upon Miniet v. Automated Packaging Systems Inc., Civ. A. No. 96-1970, 1996 U.S. Dist. Lexis 21805, at *12-13 (D.N.J. June 3, 1996), where the court determined that technical defects may be cured after the expiration of the thirty day period. However, the court further provided that "where the defect is fundamental, . . . the notice of removal may not be untimely amended . . . [T]he thirty day requirement imposed by 28 U.S.C. § 1446 is fundamental." Miniet, 1996 U.S. Dist. Lexis 21805, at *12-13. The requirement that all defendants unequivocally express their consent to join in the notice of removal is also a fundamental aspect of 28 U.S.C. § 1446. Lewis v. Rego, 757 F.2d at 68. Defendant Brooks' failure to properly join in the notice of removal is a fundamental defect that may not be cured after the expiration of the thirty day period.⁴

III. CONCLUSION

All defendants to an action must...