DANE T. AMBLER, Plaintiff,
CORMEDIA LLC, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD D. ROGERS UNITED STATES DISTRICT JUDGE
This matter is presently before the court upon plaintiff's motion to remand. Having carefully reviewed the arguments of the parties, the court is now prepared to rule.
This is an action in which plaintiff asserts various torts against the defendants. The claims arise from the issuance of certain information about the plaintiff in a publication called "The Slammer." Plaintiff originally filed this action in the District Court of Wyandotte County, Kansas on March 13, 2013. The named defendants were: CorMedia, LLC; Hogo Media, LLP; Isaac Cornetti; Nicolas Hodgson; and Philip Joseph Goatcher. Plaintiff filed an amended petition on March 21, 2013. All of the defendants were served with defendant Goatcher being the last served on March 24, 2013. Defendant Hodgson removed the case to this court on April 19, 2013. In the removal petition, Hodgson indicated that defendant Goatcher and Hogo Media, LLP were agreeable to removal. Hodgson further stated that he had attempted to confirm whether the remaining defendants were agreeable to removal, but he had been unable to obtain their position prior to filing the removal petition.
Plaintiff filed the instant motion to remand on May 16, 2013. In his motion, he contends that remand to the state court is appropriate because (1) the defendants did not unanimously consent to removal pursuant to 28 U.S.C. § 1446(b); and (2) defendants Hodgson, Goatcher and Cornetti waived their right to removal by seeking affirmative relief in the state court prior to removal. He seeks attorney's fees and costs under 28 U.S.C. § 1447(c).
On June 6, 2013, defendants Cornetti and CorMedia, LLC filed a pleading indicating that they were joining in the removal petition filed by Hodgson.
A defendant may remove any civil action brought in state court to the federal district court embracing the place where such action is pending if the case could have originally been filed in federal court. 28 U.S.C.A. § 1441(a). District courts are granted original jurisdiction over a variety of civil actions, including those between citizens of different states where the amount in controversy exceeds $75, 000. 28 U.S.C.A. § 1332.
The procedure for removing a case to federal district court is governed by 28 U.S.C. § 1446. In December 2011, Section 1446 was amended as part of the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ("JVCA"). Pub.L. No. 112-63, § 103(b), 125 Stat. 758, 760-61 (Dec. 7, 2011). The amended version of § 1446 requires in part that "[w]hen a civil action is removed solely under section 1441(a), 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).
Prior the JVCA, an exception to the unanimity rule existed where "nominal, unknown, unserved or fraudulently joined defendants" did not join or consent to removal. McShares, Inc. v. Barry, 979 F.Supp. 1338, 1342 (D.Kan. 1997); see also Dodson Aviation, Inc. v. HLMP Aviation Corp., No. 08-4102-EFM, 2009 WL 1036123, at *2-3 (D.Kan. Feb. 12, 2009)(denying motion to remand where nominal defendant failed to join or consent to removal). Hodgson has not argued this exception and it does not appear applicable in this case. The court must strictly construe removal statutes and resolve all doubts in favor of remand. See Ortiz v. Biscanin, 190 F.Supp.2d 1237, 1241 (D.Kan. 2002); Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). As the removing party, Hodgson has the burden to show that he properly removed the action. Wakefield v. Olcott, 983 F.Supp. 1018, 1020 (D.Kan. 1997).
Plaintiff asserts that the unanimity requirement has not been met here because (1) defendant Hodgson's statement that defendants Goatcher and Hogo Media, LLP were agreeable to removal is inadequate; and (2) defendants CorMedia, LLC and Cornetti did not timely consent to removal.
Defendant Hodgson contends that plaintiff's motion should be denied because (1) the consent to removal by Goatcher and Hogo Media, LLP was proper because they are all now represented by the same counsel; and (2) the court should excuse the failure to defendants CorMedia, LLC and Cornetti to timely consent due to exceptional circumstances. With regard to the first contention, Hodgson notes that all defendants in the state court case were initially represented by other counsel. However, all defendants left their initial counsel on or about April 17, 2013. Hodgson notes that he and defendants Goatcher and Hogo Media, LLP, are now represented by the same counsel. Since all are represented by the same counsel now, then the consent noted by Hodgson's counsel at the time of removal was sufficient to satisfy the rule of unanimity for these defendants. With regard to the second contention, Hodgson suggests that the fact that CorMedia, LLC and Cornetti have no counsel and are proceeding pro se constitutes exceptional circumstances that justify their failure to consent to removal within the thirty-day time period. Hodgson relies upon Fifth Circuit case law for this exception to the timeliness requirements of the removal statutes. See Brown v. Demco, 792 F.2d 478, 482 (5th Cir. 1986). Finally, Hodgson argues that the actions taken by the defendants in state court were not sufficient to waive their right to removal and submit to state court jurisdiction.
The court finds it unnecessary to resolve the first contention concerning unanimity because there is little question that remand is required due to the lack of Cornetti and CorMedia, LLC to timely join in the removal petition. The court finds no support for the application of the "exceptional ...