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Settle v. Diversified Consultants Inc.

United States District Court, D. Kansas

April 22, 2014

JIMMY D. SETTLE, Plaintiff,
v.
DIVERSIFIED CONSULTANTS INC., KENNETH SANCHEZ, DANIEL DOE, SARAH DOE, AND DAVID DOE, Defendants.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

This matter comes before the court on Plaintiff's Motion to Remand (Doc. 10). Plaintiff argues that Defendant's removal should be stricken and the case remanded to the Wyandotte County District Court because (1) Defendant's Notice of Removal (Doc. 1) was not timely filed and (2) Defendant failed to comply with 28 U.S.C. 1446(b)(2)(A) because not all defendants consented to the removal action. For the reasons stated below, the Court denies Plaintiff's Motion to Remand.

I. Factual and Procedural Background

Jimmy Settle ("Plaintiff"), an individual residing in the state of Kansas, filed this action in the District Court of Wyandotte County on October 23, 2013.[1] Plaintiff alleges that Diversified Consultants, Inc. ("Diversified"), Kenneth Sanchez, Daniel Doe, Sarah Doe, and David Doe engaged in abusive, deceptive and unfair debt collection practices in violation of the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and the Kansas Consumer Protection Act Chapter 50 Article 6.[2] Diversified is a debt collection agency based in Florida.[3] According to the Complaint, Sanchez is a collection manager acting on behalf of Diversified.[4] The Complaint also states that three Doe defendants, each of whom contacted Defendant in an attempt to collect debt, acted under the direction, supervision and control of Diversified.[5] Defendant Diversified was served process on October 28, 2013 and filed a notice of removal to this Court on November 26, 2013.[6] It is uncontroverted that the four other named defendants in this action did not join in or consent to the removal action. On December 9, 2013, Plaintiff filed a motion to remand, arguing that Defendant's Notice of Removal (Doc. 1) was not timely filed and failed to comply with 28 U.S.C. 1446(b)(2)(A) because not all defendants joined or consented to the removal action. Diversified has filed a response to the Motion to Remand contesting both the timeliness argument and the failure to join all defendants argument.

III. Analysis

Plaintiff sets out two arguments in support of his Motion to Remand. Both arguments will be addressed in turn.

A. Plaintiff's Claim that Diversified's Notice of Removal Was Not Timely Is Not Supported by the Record.

A defendant desiring to remove a civil action from a state court to a federal court is required to file notice of removal within thirty days after receipt of service.[7] Plaintiff argues that "not even one defendant communicated to the court prior to the expiration of the thirty day period that any defendant had consented to the removal."[8] The record shows that Diversified was served on October 28, 2013.[9] Thirty days from October 28 was November 27. Diversified filed its notice of removal on November 26, 2013.[10] Therefore, Diversified's filing was timely.

B. Section 1446(b)(2)(A) Does Not Render Diversified's Notice of Removal Defective Because the Other Defendants Were Not Required to Join the Filing.

Section 1446(b)(2)(A) provides: "When 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." Violation of this rule, commonly known as the "rule of unanimity, " renders the petition for removal procedurally defective and justifies remand to state court.[11] However, "exceptions exist for the non joinder of nominal, unknown, unserved or fraudulently joined defendants."[12] Such defendants need not join in or consent to removal.[13]

Plaintiff claims, and the record confirms, that defendants Kenneth Sanchez, Daniel Doe, Sarah Doe, and David Doe ("individual defendants") did not join in or consent to Diversified's Notice of Removal.[14] Plaintiff's motion argues that this constitutes a failure to comply with the rule of unanimity and therefore, the Court should remand the action.[15] Defendant Diversified contends that none of the individual defendants were required to join the removal.[16] Defendant sets forth two separate bases for its position.

1. The Doe Defendants Qualify Under the "Unknown Defendant" Exception to the Rule of Unanimity and Are Not Required to Join Diversified's Removal Action.

Plaintiff argues that the Doe defendants were properly served and therefore are required to join in or consent to the removal of the action. Defendants contend that the three "Doe defendants" fit under the "unknown defendants" exception to the unanimity rule.[17] This Court has recognized such an exception.[18] "The exception rests on the bedrock principle' that [a]n individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process.'"[19] Daniel Doe, Sarah Doe, and David Doe are all unknown defendants. Therefore, these defendants need not join or consent to Diversified's removal action for the removal to be proper.[20]

2. Sanchez Has Not Been Properly Served and, Therefore, He Is Not Required to Join or Consent to ...


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