Don Zupanec, Federal Litigator, Law And Motion: Notice of Removal – Multiple Defendants – Consent, December (2006).
In this article out of the Federal Litigator, Don Zupanec provides a summary of Andreshak v. Service Heat Treating, Inc. 439 F.Supp.2d 898 (E.D.Wis. 2006), a case in which the district court reminded the defendants about a rule we all learned in elementary school: No one gets any unless everyone does. Most of us know that in lawsuits involving multiple defendants, all defendants who may properly join in removal must consent to removal. Well, in this case, one of the defendants forgot his permission slip for the field trip to the federal courthouse.
In Andreshak, two defendants jointly filed a timely removal petition. Attached to the removal petition was an affidavit from a third defendant in the action, however this defendant had not joined in the petition. Further, the two removing defendants provided no explanation as to why the third defendant was not joined in the petition. After the plaintiff moved to remand, the truant defendant promised the court that it had been fine with removal at the time the other defendants filed the removal petition, and finally filed its own affidavit consenting to removal.
The defendants’ 30 day “get out of state court” window had expired like a carton of milk stuck in the back of the cooler. The court concluded removal was improper, and the defendants were sent to detention in state court.
Bottom Line: Zupanec briefs the case and provides a quick recap of the unanimity rule and its exceptions – good refresher on a straightforward rule.