PHILADELPHIA – A federal judge has chosen to remand a Glenolden man’s negligence, products liability and breach of warranty action to state court, due to several of the defendants not filing their own consents for removal of the action to federal court.
On Nov. 28, Judge Harvey Bartle III decided plaintiff Robert Casey’s litigation against defendants Xpedx, Veritiv, Veritiv Corporation, as well as Ford Motor Company and Ford, would be remanded to the Philadelphia County Court of Common Pleas.
Casey says he was in the course of his employment delivering auto parts when the box he was attempting to lift broke, causing him serious injuries. Casey alleges said maladies, a cervical injury and right elbow lateral epicondylar tear, came as a result of “the defective box sold, manufactured, leased, marketed, distributed and designed by defendants.”
Initially, the case was filed in the state court – but attorneys for Ford Motor Company cited both diversity of citizenship between the parties and the amount of money in controversy as exceeding $75,000 as grounds for removing the case to federal court in a Sept. 26 motion filing.
But within 30 days, Casey moved to remand this action to the state court, on the grounds that the other served defendants did not timely file consents to removal.
Ford Motor Company’s removal notice said it had “obtained the co-defendants’ consent” to include them as part of the motion, but Casey said this was insufficient and “each co-defendant itself must place its consent on the record in a timely manner.”
Bartle explained while the relevant removal procedure is outlined in 28 U.S.C. Section 1446, “all defendants who have been properly joined and served must join in or consent to the removal of the action, [but] the statute is silent on exactly how any joinder or consent is to be made known or effected.”
“Various courts throughout the country which have grappled with this question are divided. Some allow one defendant to represent to the court that a co-defendant consents to removal while others require each defendant to speak for itself and file a written consent in some form,” Bartle said.
According to Bartle, Judge William H. Yohn previously decided this same question in Ogletree v. Baines, a medical malpractice and civil rights action where the same issue of merely partial defendant consent for removal was at hand.
“Having found no precedent in this Circuit, Judge Yohn reviewed the case law in other circuits and concluded that remand was required. We agree with Judge Yohn that we must strictly construe the removal statute and resolve all doubts in favor of remand,” Bartle said.
“Each defendant must speak for itself by means of an individual or joint filing with the court. This is not an onerous burden and avoids any ambiguity or challenge from the plaintiff concerning the validity of the consent,” Bartle added.
Bartle reiterated in the instant case, Ford only stated in its removal notice “that it had obtained the consent of the other defendants”, and “the other defendants did not file their own removal notice or a joinder or consent to Ford’s removal notice within the required 30 days after service of the complaint.”
“The informal exchange of e-mails between defense attorneys confirming their agreement to remove the case cannot suffice, particularly when the e-mails were not filed until Nov. 2, 2016, well beyond the filing deadline under Section 1446. Accordingly, we will grant the motion of the plaintiff to remand this action to the Philadelphia County Court of Common Pleas,” Bartle said.
The plaintiff is represented by Thomas F. Sacchetta of Sacchetta & Baldino, in Media.
The defendants are represented by Francis P. Devine III and Katherine B. Puccio of Pepper Hamilton in Philadelphia, plus Alicia S. Luke and William J. Conroy of Campbell Campbell Edwards & Conroy, in Berwyn.
U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-05135
Philadelphia County Court of Common Pleas case 160702028
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com