Properly Served Defendant Cannot Cure Its Failure to Timely Consent to a Removal Petition Under 28 U.S.C. § 1446(b) by Joining the Opposition to a Motion to Remand, Holds Second Circuit

In Taylor v. Medtronic, Inc., No. 20-742 (2d Cir. Sept. 30, 2021), the Second Circuit holds the defendants to the strict requirements 28 U.S.C. § 1446(b), holding that a defendant that erroneously believed it was not properly served could not retroactively consent to a removal petition after the statutory 30 days by joining the other defendants’ opposition to the plaintiffs’ motion to remand.

Here, plaintiff “Taylor sued Medtronic, Inc., Medtronic, USA, Covidien Holding Inc., Covidien, Inc., and Covidien LP (collectively, ‘Medtronic’) seeking damages for injuries he allegedly suffered from a defective mesh implant used during surgery to repair his inguinal hernia.”

The claim met the diversity and amount-in-controversy requirements for removal. One of the additional requirements to affect a removal from state to federal court is that all the properly served defendants must consent to removal within 30 days of the action being commenced in state court, i.e., the rule of unanimity. 28 U.S.C. § 1446(b)(2)(A) (“all defendants who have been properly joined 3 and served must join in or consent to the removal of the action”).

Covidien LP, though, “did not join the notice. Covidien LP is a corporate sibling of the other four defendants, and is represented by the same counsel. The removal notice stated that ‘Covidien LP has not been served in this action,’ and noted that “[c]onsent is not required for Defendants who have not yet been served.’” But Covidien LP was mistaken. It had been served but the agent of service failed to forward the summons. So defendants argued that “[t]he failure to include Covidien LP in the notice of removal was a technical oversight,” and was curable by Covidien LP joining the opposition to remand. The district court agreed and denied the motion.

The Second Circuit reverses the denial of remand. “The issue here is whether the removal statute allows a defendant to consent to removal after the thirty-day deadline for removal lapses. It does not. Where, as here, a properly served defendant fails to provide notice of consent to removal within the thirty-day statutory period, the defendant cannot cure that failure by providing late consent. This straightforward application of 28 U.S.C. § 1446(b)(2)(B) is consistent with our Circuit’s presumption against removal.”

Other circuits have held that joining a motion to remand could cure a failure to timely consent. But “the other Circuits acted under different circumstances.” While “a motion to dismiss accepting removal or opposition to remand can satisfy the writing requirement if made within the statutory time period for removal, but that is not the question before us.”

Moreover, those decisions “predated Congress’s codification of the rule of unanimity in 2011. See Pub. L. No. 112-63, § 103(b)(3)(B), 125 Stat. 760, 762 (2011). When the rule of unanimity was a judge-made rule, courts could allow judge-made exceptions to that rule. But now we are limited to interpreting a clear statutory command from Congress that all defendants must consent to removal within thirty days of service. Where, as here, Congress provides no exceptions to the rule, we are not at liberty to create one.”

“Congress of course knew how to draft exceptions to the unanimity rule’s thirty-day limitation. In fact, the removal statute itself permits some exceptions;  for instance, it generally allows defendants to remove a case outside of the ordinary thirty-day window if the basis for removal becomes clear only after a plaintiff files an amended pleading. See 28 U.S.C. § 1446(b)(3). Moreover, certain federal statutes alter the thirty-day timeline for specified actions . . . . Congress thus contemplated certain minimal exceptions, implicitly rejecting others, and we lack the ‘judicial discretion’ to add exceptions that Congress omitted.”

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