United States District Court, E.D. Pennsylvania
an action brought under the Sherman Antitrust Act, 15 U.S.C.
§§ 1 and 2, the Clayton Antitrust Act, 15 U.S.C.
§§ 15 and 16 and the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 P.S. §§
201-1, et seq.
Alisha Alejandro, originally filed this lawsuit in the Court
of Common Pleas of Philadelphia County against three
defendants, Philadelphia Vision Center (“PVC”),
Bruce Rubin, and Louisa C. Gaiter Johnson, O.D. Thereafter
defendant Johnson removed the action to this court. Now
pending is plaintiff's motion to remand to the state
court on the ground that all defendants did not timely
consent to removal.
action was initiated in the state court with a writ of
summons. A complaint was subsequently filed, and service was
made on all defendants on July 5, 2017. Defendant Johnson
timely filed a Notice of Removal on July 25, 2017. The other
two defendants, PVC and Rubin, who are represented by the
same attorney, did not file a Notice of Removal or a consent
or joinder at that time. However, on August 1, 2017, they
moved to dismiss the complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. In that motion, PVC and
Rubin stated, “On July 25, 2017, defendant, Dr.
Johnson, filed her notice of removal. Defendants Philadelphia
Vision Center and Bruce Rubin did not object to the removal
of the matter to this court.” Plaintiff's motion to
remand followed on August 15, 2017. One day later, on August
16, 2017, PVC and Rubin filed a “Confirmation of
Consent to Removal.”
28 U.S.C. § 1441, a civil action such as this where the
district court has original jurisdiction may be removed from
the state court to the federal court. Removal must occur
“within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for
relief[.]” 28 U.S.C. § 1446(b)(1). In addition,
“all defendants who have been properly joined and
served must join in or consent to the removal of the
action.” 28 U.S.C. § 1446(b)(2)(A). The window for
joinder or consent of each defendant is thirty days after
receipt by or service of the complaint on that defendant.
See 28 U.S.C. § 1446(b)(2)(B). Under §
1447(c), the plaintiff has thirty days after the filing of
the Notice of Removal to move to remand the action to the
state court on the basis of any procedural defect in the
removal process. A motion to remand that is grounded in lack
of subject matter jurisdiction may be made at any time before
final judgment. Id.
well established that all defendants, with exceptions not
relevant here, must timely consent to or join in the removal
of an action for removal to be effective. Balazik v.
County of Dauphin, 44 F.3d 209, 213 n.4 (3d Cir. 1995);
Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir. 1985).
Each defendant must sign another defendant's Notice of
Removal, file its own Notice of Removal, or file a written
consent to, or joinder in the original Notice of
Removal. Landman v. Borough of Bristol,
896 F.Supp. 406, 409 (E.D. Pa. 1995).
defendant may not speak for another defendant when filing a
Notice of Removal. Id. Defendant A, for example,
cannot give its consent to removal by authorizing defendant
B, who is filing the Notice of Removal, to say that defendant
A consents without the defendant A or defendant A's
attorney actually signing the Notice of Removal. Green v.
Target Stores, Inc., 305 F.Supp.2d 448, 449 (E.D. Pa.
2004). Nor may consent be established by attaching a letter
of consent from one defendant to another defendant's
Notice of Removal. Morganti v. Armstrong Blum Mfg.
Co., 2001 WL 283135 at *2 (E.D. Pa. March 19, 2001).
Furthermore, the mere entry of appearance of defendant's
attorney or the mere filing of an answer or a motion to
dismiss by that defendant in the federal court does not
constitute consent. See McGuire v. Safeware, Inc.,
2013 WL 5272767 at *3 (E.D. Pa. Sept. 17, 2013). As stated in
Morganti, all defendants must “expressly,
officially and unambiguously consent to join in a notice of
removal to federal court.” Morganti, 2001 WL
283135 at *4.
question before the court is whether the statement of PVC and
Rubin about removal in their August 1, 2017 motion to dismiss
the complaint constitutes the filing of consent to remove
this action to the federal court. PVC and Rubin simply wrote
in their motion to dismiss that they “did not
object” to the removal of this action to the court when
Johnson filed her Notice of Removal on July 25, 2017. An
expression of no objection to an act of another party does
not mean consent to or joinder in what that other party is
doing. It is at best an ambiguous signal that cannot meet the
requirement of an affirmative written consent to removal as
required under § 1446(a) and as articulated in the case
removal statute must be strictly construed in favor of state
court jurisdiction. See Boyer v. Snap-on Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990). PVC and Rubin
did not expressly, officially and unambiguously consent to
remove this action to the federal court in a timely manner.
Their words in their August 1, 2017 motion to dismiss that
they “did not object” to Johnson's removal
will not suffice. Recognizing the deficiency, they belatedly
docketed a “Confirmation of Consent to Removal”
but not until August 16, 2017, a day after plaintiff filed
her motion to remand. Defendants' consent comes too late
since it occurred more than thirty days after July 5, 2017
when defendants were served with the complaint. See
28 U.S.C. § 1446(b)(2)(B).
since all defendants did not timely consent to removal, this
action will be remanded to the Court of Common Pleas of
There is a second requirement under
§ 1446(b)(1) which is not relevant here.
Failure of all defendants to consent to
removal can be waived since such a defect is not
jurisdictional. In re FMC Corp. Packaging Sys. Div.,
208 F.3d 445, 451 (3d Cir. 2000). However, plaintiff has
filed a timely motion ...