Newman v. Spectrum Stores, Inc., CIV.A. 00-A-720-E.

• Decision Date: 30 August 2000
• Docket Number: No. CIV.A. 00-A-720-E.,CIV.A. 00-A-720-E.
• Citation: 109 F.Supp.2d 1342
• Parties: Tommy C. NEWMAN, Plaintiff, v. SPECTRUM STORES, INC., Protective Life Insurance Company, et al., Defendants. Spectrum Stores, Inc., Third Party Plaintiff, v. Cma Agency, Inc., Third Party Defendant.
• Court: U.S. District Court — Middle District of Alabama

109 F.Supp.2d 1342

Tommy C. NEWMAN, Plaintiff, v. SPECTRUM STORES, INC., Protective Life Insurance Company, et al., Defendants.

Spectrum Stores, Inc., Third Party Plaintiff, v. Cma Agency, Inc., Third Party Defendant.

No. CIV.A. 00-A-720-E.

United States District Court, M.D. Alabama, Eastern Division.

August 30, 2000.

COPYRIGHT MATERIAL OMITTED

Linda D. Benson, Linda D. Benson, PC, East Tallassee, AL, Walter E. McGowan, Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee, AL, for Tommy C. Newman, plaintiffs.

Joseph L. Waldrep, Neal J. Callahan, Hatcher, Stubbs, Land, Hollis & Rothschild, Columbus, GA, W. Michael Atchison, Anthony C. Harlow, Allan R. Wheeler, Starnes & Atchison, Birmingham, AL, for Spectrum Stores, Inc., Protective Life Insurance Company, defendants.

MEMORANDUM OPINION

ALBRITTON, Chief Judge.

I. INTRODUCTION

This matter is before the court on Plaintiff's Motion to Remand (doc. # 9) and Amended Motion to Remand (doc. # 17). Defendants Spectrum Stores, Inc. ("Spectrum") and Protective Life Insurance Co. ("Protective Life") have filed Responses to Plaintiff's Motion to Remand. Protective Life has also filed a Motion to Amend Notice of Removal (doc. # 19), which the court will grant. After considering the pleadings and briefs of counsel, the court concludes that it should remand this action to state court.

II. FACTS

Tommy Newman ("Plaintiff") originally filed the Complaint in this case on May 1, 2000, in the Circuit Court for Macon County, Alabama. In the Complaint, the Plaintiff brings claims against the Defendants for failure to procure, fraud, outrageous conduct, breach of fiduciary duty, conversion, and breach of contract. All of these claims are in reference to a cancer insurance policy, which Plaintiff alleges he attempted to obtain through Spectrum, his employer. Protective Life is the insurance carrier involved in this dispute. Spectrum has cross-claimed against Protective Life and filed a Third-Party Complaint against CMA Agency, Inc. ("CMA"), an outside agency used by Spectrum to administer some of Spectrum's employee programs.

Protective Life was served with the circuit court Summons and Complaint on May 3, 2000, and Spectrum was served with the same on May 4, 2000. Protective Life filed its Notice of Removal with this court on June 2, 2000. Spectrum filed its Consent to Removal on July 11, 2000, sixty-nine days after Protective Life was served in the state court. Defendants claim that this court has jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff contends that this case was improperly removed, and should be remanded, because all served Defendants did not join in the removal within the time required by 28 U.S.C. § 1446.

III. REMAND STANDARD

Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994); Wymbs v. Republican State Exec. Comm. of Fla., 719 F.2d 1072, 1076 (11th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1600, 80 L.Ed.2d 131 (1984). As such, federal courts only have the power to hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673. Because federal court jurisdiction is limited, the Eleventh Circuit favors remand of removed cases where federal jurisdiction is not absolutely clear. See Burns, 31 F.3d at 1095.

IV. DISCUSSION

Title 28 U.S.C. Section 1446 sets forth the proper procedure for removal of a case from state to federal court. A defendant, or defendants, desiring to remove a civil action, must file a notice of removal, together with all process, pleadings, and orders served upon such defendant or defendants, in the appropriate United States District Court. See 28 U.S.C. § 1446(a). Such notice of removal must be signed pursuant to Rule 11. Id. The removal statute mandates that where the case stated by the initial pleading is removable:

[t]he notice of removal of a civil action or proceeding shall be filed within thirty days after 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, or within thirty days after the service of the summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b) (emphasis added).

A court must strictly construe the requirements of the removal statute, as removal constitutes an infringement on state sovereignty. See Adams v. Aero Services Int'l, Inc., 657 F.Supp. 519, 521 (E.D.Va.1987); see also York v. Horizon Fed. Sav. & Loan Ass'n., 712 F.Supp. 85, 87 (E.D.La.1989). This is a central concept of federalism. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Fitzgerald v. Seaboard System R.R., Inc., 760 F.2d 1249 (11th Cir.1985). Failure to comply with the requirements of the removal statute generally constitutes adequate grounds for remand. See Adams, 657 F.Supp. at 521; accord Royal v. State Farm Fire & Cas. Co., 685 F.2d 124, 126-27 (5th Cir.1982) (When a defendant fails to timely file his petition seeking removal, remand of the case to state court is required). When a plaintiff questions the propriety of a defendant's removal petition, the defendant bears the burden of showing that the removal was proper. See, e.g., York, 712 F.Supp. at 86; Webster v. Dow, 925 F.Supp. 727, 729 (M.D.Ala.1996); Kirby v. OMI Corp., 655 F.Supp. 219, 220 (M.D.Fla. 1987).

A. Unanimity of Defendants

"As a general rule, all defendants must join in a removal petition in order to effect removal." Northern Illinois Gas Co. v. Airco Indus. Gases, Div. of Airco, Inc., 676 F.2d 270, 272 (7th Cir.1982). Unanimity among the defendants must be expressed to the court "within thirty days after the receipt by the defendant ... of the copy of the initial pleading" containing the removable claim. 28 U.S.C. § 1446(b). This time limitation is not jurisdictional and may be waived by the plaintiff. See Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co. of North Am., 841 F.2d 1254, 1263 (5th Cir.1988). Nevertheless, the time limitation is mandatory and "must be strictly construed." Production Stamping Corp. v. Maryland Cas. Co., 829 F.Supp. 1074, 1076 (E.D.Wis.1993); see also Webster, 925 F.Supp. at 729.

The facts indicate that only counsel for Protective Life signed the original Notice of Removal filed on June 2, 2000. That filing was timely, but the Consent to Removal filed by Spectrum on July 11, 2000 clearly was not. Protective Life and Spectrum argue that this is irrelevant because Protective Life recited in its Notice of Removal that Spectrum consented to removal.¹

There is some support for the Defendants' argument. See, e.g., Jasper v. Wal-Mart Stores, Inc., 732 F.Supp. 104, 105 (M.D.Fla.1990) ("Additionally all defendants, served at the time of filing the petition, must join in the removal petition; the petition must be signed by all defendants or the signer must allege consent of all defendants."). However, the greater weight of authority is against the Defendants. "[T]he majority view is that the mere assertion in a removal petition that all defendants consent to removal fails to constitute sufficient joinder." Production Stamping Corp., 829 F.Supp. at 1078; see also Miles v. Kilgore, 928 F.Supp. 1071, 1076 & 1077 n. 6 (N.D.Ala.1996) (reciting and adopting relevant caselaw). As this court noted in Yazdtchi v. Khademi, No. 95-A-216-N, 1995 WL 131762, at *4 (M.D.Ala. March 23, 1995), "[c]ourts interpreting the removal statute in cases involving multiple defendants consistently require all served defendants to join in or consent to the removal petition within thirty days of service." There must be some "timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have authority to do so, that it has actually consented to such action." Getty Oil Corp., 841 F.2d at 1262 n. 11. There is good reason for this requirement.

By requiring each defendant to formally and explicitly consent to removal, one defendant is prevented from choosing a forum for all... `To allow one party, through counsel, to bind or represent the position of other parties without their express consent to be so bound would have serious adverse repercussions, not only in removal situations but in any incident of litigation.' ... One of the primary reasons that separate parties have separate counsel is so that each can independently present their position to the court... Requiring an independent statement of consent from each defendant ensures that the Court has a clear and unequivocal basis for subject matter jurisdiction before taking the serious step of wrestling jurisdiction from another sovereign.

Production Stamping Corp., 829 F.Supp. at 1076-77 (citations omitted).

The majority rule then, in its most basic form, is that "[i]t is simply not enough that the removing party in its notice of removal represents that the other defendants consent or do not object to removal." Wakefield v. Olcott, 983 F.Supp. 1018, 1021 (D.Kan.1997) (quoting Henderson v. Holmes, 920 F.Supp. 1184, 1187 (D.Kan.1996)). In the absence of binding precedent from the Supreme Court or from the Eleventh Circuit, this court is persuaded by the majority position adopted by the above-mentioned courts, which include the Fifth Circuit Court of Appeals. See Getty Oil Corp., 841 F.2d at 1262 n. 11.

In its timely Notice of Removal, Protective Life informs the court that "[a]ll named and served Defendants have consented to and join in the removal of this action ..." Notice of Removal at ¶ 1. This filing was inadequate as to Spectrum. Spectrum did not file its Consent to Removal until July 11,...