Production Stamping Corp. v. Maryland Cas. Co.

• Citation: 829 F. Supp. 1074
• Decision Date: 30 August 1993
• Docket Number: No. 93-C-112.,93-C-112.
• Parties: PRODUCTION STAMPING CORPORATION, Plaintiff, v. MARYLAND CASUALTY COMPANY and Northbrook Property and Casualty Company, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

829 F. Supp. 1074

PRODUCTION STAMPING CORPORATION, Plaintiff, v. MARYLAND CASUALTY COMPANY and Northbrook Property and Casualty Company, Defendants.

No. 93-C-112.

United States District Court, E.D. Wisconsin.

August 30, 1993.

Shepard A. Davis, Burton & Davis, Milwaukee, WI, for plaintiff.

Richard E. Schmidt, Christopher D. Wolske, Fellows, Piper & Schmidt, Milwaukee, WI, for defendant MD Cas. Co.

Dennis L. Fisher, Ken Iwinski, Meissner & Tierney, Milwaukee, WI, for defendant Northbrook Property and Cas. Co.

DECISION AND ORDER

RANDA, District Judge.

This matter comes before the Court on motions by the plaintiff, Production Stamping Corporation ("Production"), to remand and to extend the time for serving its mandatory discovery responses. For the following reasons, the Court grants Production's motion to remand and denies the motion for an extension of time.

FACTUAL BACKGROUND

Production filed this action in Milwaukee County Circuit Court on January 19, 1993. (Maryland's Notice of Removal at 1-2.) The defendants, Maryland Casualty Company ("Maryland") and Northbrook Property and Casualty Company ("Northbrook"), were properly served through the Office of the Commissioner of Insurance for the State of Wisconsin on January 21, 1993. (Production's Reply Brief at 2.) On February 3, 1993, Maryland removed this action to federal court based upon the Court's diversity jurisdiction. (Maryland's Notice of Removal at 1-2.) The removal petition, while lacking a separate signature from Northbrook or its counsel, contained the following assertion:

That with the consent and agreement of defendant Northbrook Property and Casualty Company, Maryland Casualty Company files this Notice of Removal.

(Maryland's Notice of Removal at ¶ 1.)

Northbrook filed its answer in this Court on February 18, 1993. (Northbrook's Response to Motion to Remand at 2.) The answer did not state that Northbrook consented to the removal of the action from state court. The only reference to the forum for the lawsuit was Northbrook's response to a standard venue allegation contained in the original complaint. That response denied that "venue is proper under the Wisconsin Statutes as this cause was removed to the Eastern District of Wisconsin on February 3, 1993." (Northbrook's Answer at ¶ 5.) Production subsequently filed the present motion to remand.

Production contends that the case was improperly removed because Northbrook failed to join in or consent to the petition for removal. Production argues that Maryland's assertion of Northbrook's consent in the notice of removal is insufficient to properly join all defendants in the removal petition. Production also argues that Northbrook's filing of an answer in this Court does not constitute an explicit, unambiguous expression of consent. Maryland and Northbrook both contend that Maryland's assertion of Northbrook's consent in the notice of removal satisfies the statutory requirement for joinder. Alternatively, they contend that Northbrook's answer constitutes sufficient written indication of Northbrook's consent to removal. The Court agrees with Production.

LEGAL ANALYSIS

Several well-established principles govern the propriety of removal petitions. First, the removal of civil cases to federal court is a serious infringement upon state sovereignty and should not be allowed without "due regard for the rightful independence of state governments...." Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); see also, Employers Ins. of Wausau v. Certain Underwriters at Lloyd's, 787 F.Supp. 165, 166 (W.D.Wis.1992). Consequently, the provisions of the removal statute are strictly construed. Employers Ins., 787 F.Supp. at 166. "A federal court should not extend its jurisdiction beyond the boundaries drawn by those provisions." Mason v. International Business Machines, Inc., 543 F.Supp. 444, 445 (M.D.N.C.1982); see also, Irving Trust Co. v. Century Export & Import, S.A., 464 F.Supp. 1232, 1236 (S.D.N.Y.1979); Employers Ins., 787 F.Supp. at 166. When there is doubt as to the right to removal in the first instance, ambiguities are to be construed against removal. Samuel v. Langham, 780 F.Supp. 424, 427 (N.D.Tex.1992); see also, Fellhauer v. Geneva, 673 F.Supp. 1445, 1447 (N.D.Ill.1987). "The district court, in a challenged case, may retain jurisdiction only where its authority to do so is clear. Any other holding would detract from principles of federalism, comity, and the sovereignty of the several states." Gorman v. Abbott Laboratories, 629 F.Supp. 1196, 1203 (D.R.I.1986). "The removing party bears the burden of showing that removal was proper." Medical College of Wisconsin Faculty Physicians & Surgeons v. Pitsch, 776 F.Supp. 437, 439 (E.D.Wis.1991). "This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute." Albonetti v. GAF Corporation-Chemical Group, 520 F.Supp. 825, 827 (S.D.Tex.1981).

"As a general rule, all defendants must join in a removal petition in order to effect removal."¹ Northern Illinois Gas Co. v. Airco Industrial Gases, Div. of Airco, Inc., 676 F.2d 270, 272 (7th Cir.1982); Padden v. Gallaher, 513 F.Supp. 770, 771 (E.D.Wis. 1981); Samuel, 780 F.Supp. at 427. 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); see also, Fellhauer, 673 F.Supp. at 1447. This thirty-day time limitation is not jurisdictional and may be waived. Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co. of North America, 841 F.2d 1254, 1263 (5th Cir.1988). Nevertheless, the time limitation is mandatory and must be strictly construed. Moody v. Commercial Ins. Co., 753 F.Supp. 198, 202 (N.D.Tex.1990); Fellhauer, 673 F.Supp. at 1447. Accordingly, if all the defendants do not join in or consent to the removal petition within the thirty-day period, "the district court shall remand the case...." 28 U.S.C. § 1447(c); see also, Mason, 543 F.Supp. at 446; Fellhauer, 673 F.Supp. at 1447.

I. MARYLAND'S ASSERTION OF CONSENT

"Although all defendants must join in the removal, the rule of unanimity does not require that all defendants sign the same notice of removal." Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 508 (E.D.Va.1992). "Non-petitioning defendants may simply consent to the removal of the action, thereby satisfying the substantive requirement that the defendants be unanimous in their choice of a federal forum." Clyde v. National Data Corp., 609 F.Supp. 216, 218 (N.D.Ga.1985). The question is whether Maryland's bald assertion of Northbrook's consent, contained in the notice of removal itself, is a sufficient joinder of all defendants within the meaning of 28 U.S.C. § 1446.

Defendants contend that it is, and there is some support for their position. 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."); Chrysler First Financial Services Corp. v. Greenfield, 753 F.Supp. 939, 941 (S.D.Fla.1991) ("The other defendants ... have not joined in the United States' petition for removal, nor has the United States indicated on the face of the removal petition whether the remaining defendants agree to removal."). But the majority view is that the mere assertion in a removal petition that all defendants consent to removal fails to constitute a sufficient joinder. Each defendant must communicate his consent to the court by way of "an official filing or voicing of consent." See, Knickerbocker v. Chrysler Corp., 728 F.Supp. 460, 461-462 (E.D.Mich. 1990), and cases cited therein. Or, as the 5th Circuit stated in Getty Oil, "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."²Getty Oil Corp., 841 F.2d at 1262, n. 11. This is sound policy. By requiring each defendant to formally and explicitly consent to removal, one defendant is prevented from choosing a forum for all. Greenfield, 753 F.Supp. at 941. "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." Creekmore, 797 F.Supp. at 509. One of the primary reasons that separate parties have separate counsel is so that each can independently present their position to the court. Id., at n. 9. 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. Accordingly, Maryland's bald assertion of consent in its removal petition cannot sustain the removal of this action.

II. NORTHBROOK'S ANSWER

Another question is whether Northbrook's answer is a sufficient written indication of consent. This question itself is twofold: (1) Whether an answer, by itself, constitutes a sufficient expression of consent; and (2) whether Northbrook's answer, containing the statement that venue under the Wisconsin Statutes is no longer proper because of the removal, constitutes a sufficient expression of consent. The Court addresses each issue in turn.

A. The Answer Alone

As a general principle, it is clear that each defendant must consent to removal "officially", "affirmatively" and "unambiguously". Creekmore, 797 F.Supp. at 508-509. Beyond that, the case law is sparse and contradictory. Some courts infer consent from the filing of a timely...