The opinion of the court was delivered by: ANITA BRODY, District Judge
Presently before me is plaintiffs' motion to remand to the Court of
Common Pleas of Philadelphia County pursuant to 28 U.S.C. § 1447(c).
For the reasons discussed below, plaintiffs' motion is granted.
On or about December 16, 2003, plaintiffs Beverly Green and Stephen
Green filed a complaint against seven defendants in the Court of Common
Pleas of Philadelphia County. The seven defendants are: (1) Target
Stores, Inc., Individually and Trading as Target ["Target Stores"]; (2)
Target Corp., Individually and Trading as Target c/o Ct. Corp. System
["Target Corp."]; (3) Target; (4) Schindler Elevator Corporation; (5)
Schindler Holding Ltd.; (6) Schindler Group; and (7) Schindler
Management, Ltd. The three Target defendants were served with a copy of
the complaint on December 19, 2003. The four Schindler defendants were
served with a copy of the complaint on December 30, 2003.
On January 20, 2004, defendant Target Stores removed the case to
federal court pursuant to 28 U.S.C. § 1332. The Notice of Removal
states in part that "Target desires to exercise its right under
28 U.S.C. § 1441, et seq. to remove" the action. Paragraph 11
Notice of Removal states that "Counsel for Schindler Elevator has
consented to removal of this action." The only attorney who signed the
Notice of Removal is Peter Y. Lee, counsel for defendant Target Stores.
On February 4, 2004, Jennifer Lee, attorney for Schindler Elevator
Corporation, joined in Target Stores' petition for removal and wrote to
the court that "on or around January 13, 2004, counsel for Schindler
Elevator Corporation expressly provided Target's counsel
with consent to Remove this case from state court to Federal Court." Ms.
Lee also wrote that, "with respect to the other Schindler entities that
plaintiffs named in their Complaint, there is no entity known by the name
Schindler Group, and Schindler Holding Ltd., and Schindler Management,
Ltd. are incorporated in Switzerland, and consequently, have not been
properly served with the Complaint."*fn1
Plaintiffs have filed an opposition to the petition for removal, and
request that this matter be remanded to the Court of Common Pleas.
Plaintiffs argue that the case must be remanded because it was not
properly removed pursuant to 28 U.S.C. § 1446. This statute
requires that a "defendant or defendants desiring to remove any civil
action or criminal prosecution from a State court shall file in the
district court of the United States for the district and division within
which such action is pending a notice of removal signed pursuant to
Rule 11 of the Federal Rules of Civil Procedure," 28 U.S.C. § 1446(a),
and that the "notice of removal of a civil action or proceeding shall be
filed within thirty days after the receipt by the defendant."
28 U.S.C. § 1446(b).
Although the statute does not explicitly require that all defendants
join the removal petition, under the "rule of unanimity," in multiple
defendant cases "all must join in the removal petition." Lewis v.
Rego Co., 757 F.2d 66, 68 (3d. Cir. 1985). Defendants do not dispute
that they are required to "join" in the removal or otherwise consent to
it, but argue that they complied with this requirement by the averment in
the removal petition of Schindler Elevator's consent, and Schindler
Elevator's joinder and letter of February 4, 2004.
It is well-settled in this district that one defendant may not speak
for another in filing a notice of removal. Southwick v. Yale
Materials Handling Corp. & Ind. Trucks. Inc., 1997 U.S. Dist.
LEXIS 9183 at *4 (E.D.Pa. June 27, 1997) ("Each consenting defendant must
either sign the notice of removal, file its own notice of removal, or
file a written consent or joinder to the original notice with the
court."); Landman v. Borough of Bristol, 896 F. Supp. 406, 409
(E.D.Pa. 1995); Ogletree v. Barnes, 851 F. Supp. 184, 188
(E.D.Pa. 1994).*fn2 District courts in several other circuits have all
applied a similar requirement that defendants must file some written
indication of their consent to removal.*fn3 There is no dispute that
Target Stores is the only
defendant who filed a notice of removal with the court within
thirty days of being served as required by 28 U.S.C. § 1446(b).
A decision by my colleague Judge Reed is instructive on the question of
whether Schindler's consent to Target Stores' petition for removal
suffices for compliance with the rule. In Morganti v. Armstrong Slum
Mfg. Co., 2001 WL 283135 (E.D.Pa. March 19, 2001), plaintiffs filed
a products liability action in the Court of Common Pleas of Philadelphia
County against two defendants: Armstrong Blum Manufacturing Company
("Armstrong") and Brooks Machine, Inc. ("Brooks"). Within thirty days of
being served, Armstrong filed a notice of removal with the district
court. Armstrong averred in its notice that Brooks had agreed to the
removal, and Armstrong attached to its notice a letter it had previously
sent to Brooks which stated: "Please be advised that per our
conversation, you had no objection to Armstrong Blum filing a Notice of
Removal on behalf of Brooks Machine, Inc." Id. at *1. After the
thirty day statutory deadline had passed, the defendants jointly filed an
amended notice of removal with the court.
The plaintiffs in Morganti argued that the original notice of
removal was procedurally defective and that the case should be remanded.
Judge Reed followed the majority rule that "consent to join in a notice
of removal must be express, official and unambiguous." Id. at
*2. In response to defendants' argument that Armstrong's proclamation of
Brooks' consent to removal should suffice, Judge Reed confirmed that "one
defendant may not speak for the other when filing a notice of removal"
and found that "Armstrong's statement in its notice of removal regarding
Brooks' consent is therefore insufficient to establish that both
defendants consented to join in the removal within the requisite thirty
day period." Id. at *2.
Morganti guides my decision because the defendants there,
like those before me, offered evidence that there had been a meeting of
the minds on the removal petition, despite the lack of all defendants'
signatures on the removal petition. Although there is evidence that
Schindler Elevator may have in fact consented to the removal in
correspondence with Target Stores, its failure to file an official notice
with the court makes the removal procedure defective. I will therefore
remand this case to the Court of Common Pleas of Philadelphia
AND NOW, this ___ day of February 2004, in considerations of
plaintiffs' motion for remand, defendants' response, and plaintiffs'
reply, the motion is GRANTED. This action is