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ELLERBEE v. UNION ZINC

March 24, 1995

ANTHONY ELLERBEE, Plaintiff,
v.
UNION ZINC, INC., et al., Defendants.



The opinion of the court was delivered by: ANITA B. BRODY

 Anita B. Brody, J.

 Before me is plaintiff's motion to remand this case to state court pursuant to 28 U.S.C. § 1447(c). Plaintiff's motion alleges that defendants' removal notices contain various procedural defects that warrant remand here. Because I find that most of these alleged defects are nonexistent and that the remaining ones are technical and thus subject to cure by amendment, I will deny plaintiff's motion.

 I. PROCEDURAL BACKGROUND

 Plaintiff commenced this products liability action by filing a complaint in the Court of Common Pleas of Philadelphia County on August 24, 1994. Defendants were served with the complaint on August 27, 1994. Defendant Old South Freight Service, Inc., ("Old South") filed a timely notice of removal in this Court on September 12, 1994, asserting diversity jurisdiction under 28 U.S.C. §§ 1332(a) & 1441(a). Co-defendants Tennessee Steel Haulers, Inc., ("Tennessee Steel") and Union Zinc, Inc., ("Union Zinc") were not mentioned in that notice as having joined in Old South's removal, but subsequently, each filed separate, timely documents reflecting their intent to do so. Tennessee Steel filed a document styled "Consent to Removal" on September 22, 1994, and Union Zinc filed its own notice of removal on September 27, 1994.

 II. DISCUSSION

 A. Joinder of All Defendants in Removal

 Plaintiff does not dispute that all defendants in fact consented to removal of this action within 30 days of service of his complaint, as required by 28 U.S.C. § 1446. Rather, he contends that the procedure was improper because the notice or consent of each defendant did not manifest the joinder of the remaining defendants or affirmatively explain such defendants' absence. It is well settled, however, that while all defendants must join in the removal attempt, they need not all execute the same notice of removal document. See Ogletree v. Barnes, 851 F. Supp. 184, 188 (E.D. Pa. 1994), reconsideration denied, No. 94 Civ. 1278, 1994 WL 193885 (May 18, 1994); Getty Oil Corp. v. Insurance Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988); Adams v. Lederle Labs., 569 F. Supp. 234, 243 (W.D. Mo. 1983); Colin K. v. Schmidt, 528 F. Supp. 355, 358 (D.R.I. 1981). The "unanimity of consent" rule is satisfied where there is "some timely filed written indication from each defendant, or 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." Ogletree, 851 F. Supp. at 188. Such a written indication constitutes an entry in the record that can "bind the allegedly consenting defendant." Id. (internal quotation omitted).

 Here, each defendant, through counsel, filed its own document evincing intent to remove or join in removal of this action. Old South and Union Zinc each filed a notice of removal. Tennessee Steel filed a "Consent to Removal." These filings were timely and would undoubtedly be deemed to bind defendants were defendants to attempt to disclaim them. Thus, I find that all defendants' have adequately joined in or consented to removal of this case. *fn1"

 B. Allegations of Diverse Citizenship

 Also unpersuasive is plaintiff's argument that remand should be ordered because the notices of Old South and Union Zinc fail to allege facts establishing the parties' diverse citizenship as of the time of removal. Plaintiff is correct that diversity jurisdiction must be alleged both as of the time the complaint was filed and as of the time of removal. E.g., Holly Farms Corp. v. Taylor, 722 F. Supp. 1152, 1156 (D. Del. 1989). Nevertheless, in addition to looking at the notice of removal, the court may look to the complaint and other items in the record to find the requisite jurisdictional allegations. See Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363, 1366 n.11 (3d Cir. 1979) (looking to complaint as well as removal petition for diversity allegations); Castner v. Exxon Co., 563 F. Supp. 684, 688 (E.D. Pa. 1983) (Pollak, J.) (looking to complaint and removal petition for diversity allegations); Kerstetter v. Ohio Casualty Ins. Co., 496 F. Supp. 1305, 1307 (E.D. Pa. 1980) (same). In any event, where, as here, the existence of diversity jurisdiction is not contested and allegations of the parties' diverse citizenship are contained in other documents in the record, the court may deem "technical" pleading deficiencies in the removal notice's jurisdictional allegations and may allow the removing party to cure them by amendment. See Stellwagen v. Chemlawn Servs. Corp, No. 92 Civ. 6437, 1993 WL 9025, at * 2 (E.D. Pa. Jan. 11, 1993) (allowing curative amendment to jurisdictional allegations in notice of removal where plaintiff "[did] not deny that diversity existed."). Accord Camacho v. Cove Trader, Inc., 612 F. Supp. 1190, 1192-93 (E.D. Pa. 1985); Moser v. Bostitch Div. of Textron, Inc., 609 F. Supp. 917, 919 (E.D. Pa. 1985); Knowles v. American Tempering Inc., 629 F. Supp. 832, 835 n.1 (E.D. Pa. 1985); Holly Farms Corp., 722 F. Supp. at 1156-57; Northern Ill. Gas Co. v. Airco Indus. Gases, 676 F.2d 270, 273-74 (7th Cir. 1982); Hendrix v. New Amsterdam Casualty Co., 390 F.2d 299, 300-01 (10th Cir. 1968).

 The record here convinces me that diversity jurisdiction was adequately alleged as of the time the complaint was filed and as of the time of removal. In any event, there is no dispute that diversity jurisdiction existed at both such points, and thus, even if the defendants' allegations are ...


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