IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
July 28, 2008
KELLIE C. KUCERA, CHARLES KUCERA, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF KELLIE C. KUCERA, PLAINTIFFS,
SOUTH ALLEGHENY SCHOOL DISTRICT; LIBERTY BOROUGH, PENNSYLVANIA; LUKE RILEY, POLICE CHIEF OF LIBERTY BOROUGH, PENNSYLVANIA AND PRESIDENT OF SOUTH ALLEGHENY SCHOOL BOARD IN HIS INDIVIDUAL CAPACITY; NICK CAITO, IN HIS INDIVIDUAL CAPACITY; AND JAY LEGIN, IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.
The opinion of the court was delivered by: David Stewart Cercone United States District Judge
AND NOW, this 28th day of July, 2008, upon due consideration of plaintiff's motion to remand and defendants' response in opposition thereto, IT IS ORDERED that the Clerk of Court remand this action to the Court of Common Pleas of Allegheny County forthwith.
As Judge Squatrito recently observed in Edelman v. Page, 535 F. Supp.2d 290, Judge Pollock's 1978 opinion in Sicinski v. Reliance Funding Corp., 461 F. Supp. 1143 (S.D. N.Y. 1978) "has been called into question by a number of courts" and its approach "is contrary to the overwhelming weight of authority requiring that each defendant independently notify the court of its consent" to removal within the thirty day period. Edelman, 535 F.3d 294 (quoting Sansone v. Morton Mach. Works, Inc., 188 F. Supp.2d 182, 185 (D.R.I. 2002)). Furthermore, defendants' reliance on the wherefore clause is misplaced because that clause is insufficient to establish that each defendant had specifically joined in and consented to the removal. Compare Edelman, 295 n. 2 (noting that the majority approach holds that each defendant must inform the court of its consent to removal prior to the expiration of the thirty day period). There being no sound basis for exempting defendants from the rule of unanimity, the entry of an order of remand is appropriate.
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