We all know that each defendant must consent to removal, which is easy when one or a couple of defendants are in the case. But what do you do when the plaintiff has sued everyone under the sun and the clock is ticking? Talk about a logistical nightmare.
In Griffioen (no, that’s not as typo – that’s how the plaintiff spells his name), the plaintiffs in this putative class action sued a lot of entities, including some railroads, some corporations, some individuals, and some municipalities, over flood damage. The theories and allegations aren’t terribly important. What is interesting is that certain defendants sought to remove the case to federal court, and while most of the defendants either signed the notice of removal or filed their own written indication of consent, some did not. Instead, the removing defendants represented in their notice of removal that they had contacted counsel for those non-signing defendants and that those defendants had consented to removal. The plaintiffs moved to remand. The district court denied the motion to remand, and an appeal to the Eighth Circuit ensued.
In a pragmatic and efficient opinion authored by Judge Wollman, the Eighth Circuit joined the Fourth, Sixth, and Ninth Circuits in holding that a representation (made pursuant to Rule 11 of course) in the notice of removal stating that all codefendants consent to removal can satisfy 28 U.S.C. Section 1446’s unanimity requirement. The Seventh and Fifth Circuits, however, still prefer to stand on ceremony by requiring each defendant to either sign the notice of removal or file its own notice within thirty days of the date of service of the removing defendant. While this is not a life-changing decision, it is a nice piece of functional guidance, which is much appreciated.