consented to the removal of this case. The Red Cross explained that its failure timely to join the defendant physicians resulted from there being no entry of appearance on their behalf at the time the case was removed. The removal petition sets forth in relevant part that "Graduate Hospital, the only other defendant on whose behalf an appearance has been entered . . . consents to and joins in this Notice of Removal."
The term "defendant or defendants" as used in section 1441(a) has consistently been read collectively so as to require the joinder or consent of all but nominal defendants, upon whom service has been made, within the thirty-day period to perfect removal. Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3731 (2d ed. 1985). See Adams v. Aero Services International, Inc., 657 F. Supp. 519, 521 (E.D. Va. 1987); Crompton v. Park Ward Motors, Inc., 477 F. Supp. 699, 701 (E.D. Pa. 1979). The thirty-day limitation is mandatory and the court is without discretion to expand it. Fellhauer v. City of Geneva, 673 F. Supp. 1445, 1447 (N.D. Ill. 1987); Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 529 (E.D. Pa. 1982). This requirement applies in federal question cases, as well as diversity cases. See Knowles v. American Tempering, Inc., 629 F. Supp. 832, 835 (E.D. Pa. 1985); U.S. v. Bluewater-Toltec Irrigation District, 580 F. Supp. 1434, 1441 (D.N.M. 1984), aff'd, 806 F.2d 986 (10th Cir. 1984); Hess v. Great Atlantic & Pacific Tea Co., 520 F. Supp. 373, 375 (N.D. Ill. 1981).
The Red Cross argues that because it was the only defendant who could invoke the court's removal jurisdiction, it did not have to obtain the consent of its co-defendants at all. The Red Cross cites cases in which removals by federal officers, the FDIC and FSLIC were upheld without the joinder or consent of their co-defendants and contends that "the Red Cross is in the same position."
The three federal officer cases cited by the Red Cross were removed from state courts pursuant to 28 U.S.C. § 1442, not § 1441. A reading of those cases makes clear that distinctive language in § 1442 permits removal by a federal officer alone but that § 1441 removal requires unanimous joinder within the thirty-day period. See, e.g., Ely Valley Mines, Inc. v. Hartford Accident & Indemnity Co., 644 F.2d 1310, 1315 (9th Cir. 1981) (§ 1442 represents exception to general rule under §§ 1441 and 1446 that all defendants must join in removal petition).
The FDIC and FSLIC cases relied on by the Red Cross are also inapposite. All of the cases cited were decided after October 16, 1966 when the Financial Institutions Supervisory Act became law. In that Act, Congress expressly provided that the FDIC and FSLIC could remove any action to which they were parties from state to federal courts. See 12 U.S.C. §§ 1730(k)(1) and 1819(4). A reading of these cases makes clear that these statutes exempt these corporations from the joinder and other requirements of § 1441 which begins "Except as otherwise expressly provided by Act of Congress." See, e.g., In Re Federal Savings & Loan Insurance Corp., 837 F.2d 432, 435-36 (11th Cir. 1988) (recognizing general joinder requirement in § 1441 removals). See also Wenzoski v. Citicorp, 480 F. Supp. 1056, 1058 (N.D. Cal. 1979). While able jurists may differ on whether Congress conferred original federal jurisdiction in Red Cross cases, it is abundantly clear that Congress never expressly provided a right to remove such cases.
Even where federal question jurisdiction is premised on the character of a defendant rather than the nature of the issues to be determined, the courts have applied the joinder requirement of § 1441 and its antecedents. See Matter of Dunn, 212 U.S. 374, 387, 53 L. Ed. 558, 29 S. Ct. 299 (1909); Chicago Rock Island & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 44 L. Ed. 1055, 20 S. Ct. 854 (1900); Edelstein v. New York Life Insurance Co., 30 F. Supp. 1, 2 (S.D.N.Y. 1939) (prior to 1966 amendment expressly providing for removal of FDIC cases); Belcher v. Aetna Life Insurance Co., 3 F. Supp. 809, 811 (W.D. Tex. 1933). See also Alicea v. Consolidated Rail Corp., 1989 U.S. Dist. LEXIS 4786 (E.D. Pa. 1989); McManus v. Glassman's Wynnefield, Inc., 710 F. Supp. 1043 (E.D. Pa. 1989).
The Red Cross points to language in Dunn that the cause of action there being against federal and non-federal parties jointly, a "Federal character permeates the whole case," and argues that under "then prevailing law" each defendant could remove, thus distinguishing Dunn, and inferentially Martin, from the current case. The court is not persuaded. A reading of the permeation reference in context suggests that the Court was stating merely that a plaintiff's joinder of resident private parties with a federal corporation on a theory of joint liability did not destroy (pre-section 1349) removal jurisdiction or render the action as to the corporation a "separable controversy." Matter of Dunn, supra, at 385-86. Dunn and Martin continue to be cited by courts and commentators in support of the general joinder requirement in removal cases.
Finally, the Red Cross maintains that this case falls within one of the several exceptions to the joinder requirement, the exception for defendants who have not been served.
It relies on Lewis v. Rego Co., 757 F.2d 66 (3d Cir. 1985) which it contends held that non-joinder of a party for the stated reason that it had not entered an appearance is sufficient to bring a removal case within the non-service exception. The Red Cross appears to read more into the Lewis case than can be justified. What the Court held in Lewis is that where a defendant, in fact, had not been served, an explanation in the petition that no entry of appearance had been made on its behalf did not render the removal defective. The Court found a recitation that no entry of appearance had been made sufficient to invoke the non-service exception where service actually had not been made.
The Court in Lewis did not hold, and it does not follow, that a defendant who has been served but who has not had an appearance entered on its behalf is exempt from the joinder requirement under the exception based on an absence of service. That the Court in Lewis contemplated actual non-service can be seen from its admonition to removing defendants that "it would have been preferable to have alleged non-service." Lewis, supra, at 69. The absence of an entry of appearance on behalf of a defendant who, in fact, has been served does not excuse the failure of a removing co-defendant to obtain his joinder or consent within the thirty-day period prescribed by § 1446(b). See Crompton, supra n. 2, at 701.
Accordingly, for the reasons set forth herein, the plaintiffs' motion to remand will be granted. An appropriate order will be issued.
AND NOW, this 25th day of October, 1989, upon consideration of plaintiffs' Motion to Remand and defendants' response thereto, pursuant to 28 U.S.C. § 1447(c) and for the reasons set forth in the accompanying Memorandum opinion of this date, IT IS HEREBY ORDERED that the above-captioned case is remanded to the Court of Common Pleas of Philadelphia County.