Court pursuant to 28 U.S.C. § 1441(b). In its removal notice, INA asserted that co-defendant Diversified consented to the removal, Notice of Removal P 2; Diversified later filed notice that it did not, in fact, consent. According to INA, removal is proper because Robco's complaint "relates to a welfare plan under the terms and conditions of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq." Notice of Removal P 3. Following removal, Robco filed a motion to remand, to which INA is opposed, and Diversified filed notice that it would not respond to the motion to remand.
II. Diversified's Lack of Consent to Removal
The removal statute requires that a "defendant or defendants desiring to remove any civil action" shall file a notice of removal "signed pursuant to Rule 11 of the Federal Rules of Civil Procedure . . . ." 28 U.S.C. § 1446(a). INA indicated in its Notice of Removal filed November 23, 1993 that Diversified had consented to removal. Notice of Removal P 2. But Diversified later filed a "Notice of Lack of Consent for Removal" on December 21, 1993.
The removal statute has been interpreted to mean, as Robco correctly points out, that multi-defendant removal is only proper, absent exceptions not relevant here, if all defendants consent to the removal. Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985); Collins v. American Red Cross, 724 F. Supp. 353, 359-60 (E.D. Pa. 1989); 1A James W. Moore, Moore's Federal Practice P 0.168 (2d ed. 1987). If removal was improper, then this Court lacks subject matter jurisdiction and must dismiss the case pursuant to 28 U.S.C. § 1447(c). We find that Diversified's lack of consent to INA's removal renders the notice of removal deficient ab initio, and we therefore must grant the motion to remand for lack of subject matter jurisdiction.
In limited situations, we may permit a notice of removal to be amended to cure a jurisdictional defect. 28 U.S.C. § 1653; Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262 (5th Cir. 1988). But cure is not appropriate in this case: Diversified has specifically declined to consent to INA's removal. And as explained in some detail below, we would have remanded to the state court even if removal had been proper because we find neither complete preemption nor a well-pleaded ERISA-cognizable claim.
III. The Well-pleaded Complaint Rule and Complete Preemption
In addition to its no-consent argument in support of remand, Robco asserts two other arguments. First, it argues that the action is not removable because its well-pleaded complaint does not raise a federal question. Second, it urges that its claims are not preempted by ERISA.
Where removal is properly effected, we have subject matter jurisdiction pursuant to 28 U.S.C. § 1441, which provides that "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under" federal law is removable by a defendant or defendants to the district court. Id. § 1441(b). Thus removal is proper where the state-court action was one which could have originally been brought in a federal district court. (In diversity cases, citizen-defendants of course cannot remove. 28 U.S.C. § 1441(b).) Thus, removal is proper if Robco's well-pleaded complaint either (1) raises a federal question, or (2) asserts claims that are completely preempted by Congress.
As is well-known, application of the well-pleaded complaint rule determines whether a complaint asserts a federal cause of action. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987); Allstate Ins. Co. v. 65 Security Plan, 879 F.2d 90, 93 (3d Cir. 1989). Only complaints that facially present a federal question are removable under the well-pleaded complaint rule, and a complaint facially presents a federal question only if it "affirmatively relies on federal law." Allstate, 879 F.2d at 93.
Robco contends that its claims do not rely on federal law because they are brought pursuant to Pennsylvania laws of common-law contract and statutory insurer bad faith under 42 Pa.C.S.A. § 8371, and therefore its well-pleaded complaint raises no federal question. INA counters that Robco's complaint "relates to" an employee benefit plan and therefore raises federal-question jurisdiction pursuant to 28 U.S.C. § 1331. We summarily reject INA's argument because it merely raises preemption as a federal defense, which cannot be the basis for removal. Caterpillar, Inc. v. Williams, 482 U.S. 386, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987); Allstate, 879 F.2d at 93.
A corollary to the well-pleaded complaint rule is the "complete preemption doctrine." Allstate, 879 F.2d at 93. Under this doctrine, "Congress may so completely pre-empt a particular area, that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan, 481 U.S. at 62. In the United States Court of Appeals for the Third Circuit, complete preemption only may be found
when two circumstances are present:  when the enforcement provisions of a federal statute create a federal cause of action vindicating the same interest that the plaintiff's cause of action seeks to vindicate and  when there is affirmative evidence of congressional intent to permit removal despite the plaintiff's exclusive reliance on state law.