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Xia Zhao and David Ehrmann v. Skinner Engine Company et al

September 1, 2011

XIA ZHAO AND DAVID EHRMANN, PLAINTIFFS,
v.
SKINNER ENGINE COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Yohn, J.

MEMORANDUM

Xia Zhao and David Ehrmann, husband and wife, have filed a motion to remand this products-liability action to the Court of Common Pleas of Philadelphia County, where they originally filed the action. Because of a procedural defect in the removal of the action to this court-namely, the failure of all defendants to join in the removal notice or to otherwise provide timely written consent to removal-I will grant plaintiffs' motion to remand.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This action arises from injuries allegedly suffered by Xia Zhao when she was using a rubber extrusion machine referred to as the KO Intermix, KO Lab Intermix, KO MK3 Shaw Intermix, or KO Intermix MK3. Plaintiffs, residents of Pennsylvania, commenced this action in the Court of Common Pleas of Philadelphia County on March 9, 2011, against eight defendants, including Shar Systems, Inc. ("Shar"), a corporation with its principal place of business in Indiana; Polymer Machinery Company ("Polymer"), a corporation with its principal place of business in Ohio; Farrel Corporation ("Farrel"),*fn1 a corporation with its principal place of business in Connecticut; and HF Rubber Machinery, Inc. ("HF"), a corporation with its principal place of business in Kansas. Plaintiffs alleged that each defendant was involved in the design, manufacture, sale, or distribution of the machine.

Defendants HF and Polymer were served with the complaint on March 14, 2011, by certified mail; Farrel was served by certified mail on March 17, 2011; and Shar was allegedly served by certified mail on or before March 15, 2011.*fn2 None of the other four defendants was served, and as of April 12, 2011, the docket showed that only HF, Polymer, and Farrel had been served; there was no entry on the state-court docket reflecting service of the complaint upon Shar. (Pl.'s Mot. to Remand Ex. 13.)

On April 12, 2011, Farrel and HF (collectively, the "removing defendants") filed a notice of removal to this court, asserting that the court has original jurisdiction over the action, on the basis of diversity of citizenship, under 28 U.S.C. § 1332. The notice stated that "[t]he only other Defendant in the action to date, Polymer Machinery Corporation, has consented to this action being removed to federal court." (Notice of Removal ¶ 13.)

Plaintiffs timely filed, on May 5, 2011, a motion to remand this action to state court on the ground that the removal procedure was defective because defendants Shar and Polymer neither joined in the notice of removal nor provided timely written consent to removal.

II. DISCUSSION

A defendant in a state court action may remove the case to federal court if the federal court could have originally exercised jurisdiction over the matter. See 28 U.S.C. § 1441(a).*fn3 "Removal is a statutory right, and the procedures to effect removal must be followed." Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985). "It is settled that the removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand." Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) (footnote omitted). Section 1446, which sets forth the procedures for removing a case to federal court,*fn4 "has been construed to require that when there is more than one defendant, all must join in the removal petition." Lewis, 757 F.2d at 68; see also Balazik v. County of Dauphin, 44 F.3d 209, 213 (3d Cir. 1995) ("[I]t is well established that removal generally requires unanimity among the defendants.")

Here, Polymer did not sign the notice of removal.*fn5 Nonetheless, Polymer argues that it "joined" the notice of removal. Polymer asserts that when contacted by counsel for the removing defendants, Polymer's counsel not only consented to removal but also stated that the removing defendants "had authority to speak for [Polymer] to the extent necessary to effectuate removal." (Resp. of Defs. Polymer Machinery Co. & Barwell Polymer Machinery Co. (A Non-Existent Entity) in Opp'n to Pls.' Mot. to Remand at 1--2.)

The Third Circuit has not addressed the question of what is required to evidence joinder in, or consent to, removal. Courts in this district, however, have held that each defendant must either sign the notice of removal or submit to the court a timely written notice of consent to removal. See, e.g., Knit With v. Aurora Yarns, No. 09-5981, 2010 U.S. Dist. LEXIS 22592, at *30--34 (E.D. Pa. Mar. 11, 2010); Green v. Target Stores, Inc., 305 F. Supp. 2d 448, 449--50 (E.D. Pa. 2004). It is not sufficient for the removing defendant to assert in its notice of removal that the other defendants consent to removal. See, e.g., Landman v. Borough of Bristol, 896 F. Supp. 406, 409 (E.D. Pa. 1995) ("[O]ne defendant's attempt to speak on behalf of another defendant will not suffice."); Ogletree v. Barnes, 851 F. Supp. 184, 187--90 (E.D. Pa. 1994).*fn6 Here, Polymer neither signed the notice of removal nor filed a separate written notice consenting to removal. Because the removing defendants' statement in their notice of removal that Polymer consented to removal of the action is insufficient to establish Polymer's consent, the removing defendants have failed to satisfy the unanimity requirement.

There are, however, several exceptions to the unanimity requirement, and the removing defendants argue that, under these exceptions, Polymer's consent to removal was not required here.

Analogizing to the doctrine of fraudulent joinder, the removing defendants argue that Polymer is not a proper party to the action and thus that its consent to removal is not necessary.*fn7 But they failed to allege in their notice of removal that Polymer was an improper party or had been fraudulently joined. The removing defendants stated only that Polymer was a defendant in the action and consented to removal. (See Notice of Removal ¶ 13.) In any event, there is no basis for concluding that Polymer is an improper party or was fraudulently joined.

It is well established that a defendant that has been improperly or fraudulently joined need not join in the notice of removal. See Balazik, 44 F.3d at 213 n.4 (asserting that the unanimity rule may be disregarded where a defendant has been fraudulently joined). The Third Circuit has explained that "joinder is fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendants" (the objective test) or where the plaintiff has "no real intention in good faith to prosecute the action against the defendant or seek a joint judgment" (the subjective test). Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. ...


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