United States District Court, S.D. Ohio, Eastern Division
Ronald A. Nichols, Plaintiff,
Adena Health System, et al., Defendants.
Terence P. Kemp, United States Magistrate Judge
case is before the Court to consider a supplemental filing
made concerning the Plaintiff's motion to remand to state
court. Based on that filing, the motion will be granted. The
explanation for the Court's decision begins with
reference to a prior order (Doc. 32) which outlined the issue
in this case.
order, the Court noted that although the motion to remand
stood unopposed, the Court still had to satisfy itself that
remand was statutorily permissible. The basis of the motion
was that not all of the defendants had consented to the
removal, so that it violated the “rule of
unanimity” which is found in 28 U.S.C.
§1446(b)(2)(A). That provision requires 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
The Court explained the key issue this way:
According to the docket sheet of the state court, which is
attached as an exhibit to the motion to remand, all seven
defendants had been served as of the date the notice of
removal was filed. The notice was filed on behalf of, and
signed by counsel for, three of them -Choice Recovery, Inc.,
Choice Recovery, LLC, and First Federal Credit Control, Inc.
See Doc. 1. However, the notice affirmatively
represents that it was being filed “with consent of
counsel for the remaining defendants....” Id.
Under the case law in this Circuit, see Harper v.
AutoAlliance Intern., Inc., 392 F.3d 195 (6th Cir.
2004), that would appear to be sufficient to satisfy the
“unanimity requirement” found in
§1446(b)(2)(A). Some courts have held that corporate
parties may express that consent only through counsel,
see, e.g., Polston v. Millennium Outdoors, LLC, 2017
WL 878230 (E.D. Ky. March 6, 2017), but the notice filed in
this case represents that the consent came from counsel, so
that does not appear to be an issue here, at least on the
basis of the current record.
Some of the non-removing defendants have affirmatively
indicated their consent to the removal. See Docs. 21
and 22, in which Adena Health Systems and JP Recovery
Services do so. Neither Columbus Radiology Corporation, which
has not appeared in the case, nor Synerprise Consulting
Services, Inc., which has been voluntarily dismissed, did so,
but if consents were obtained from both of those defendants
prior to removal, as stated in the notice, that would not
seem to matter.
See Doc. 32, at 2-3.
order to determine the true state of affairs, the Court
directed counsel for the removing defendants to advise the
Court in some fashion whether proper consent for removal was
actually obtained. That filing was made on May 9, 2017, and
provides the following additional facts.
to removing the case, counsel for the removing defendants did
seek consent to removal from counsel for the other parties.
He concluded, based upon the wording of certain filings or
docket entries made in the state court, that Charles Ticknor,
counsel for Adena Health System, also represented Columbus
Radiology. As it turned out, that assumption was incorrect.
As a result, he never obtained, prior to removal, consent to
the removal from anyone associated with or actually
authorized by Columbus Radiology to consent. However, counsel
also states that after the removal occurred, he received
telephone consent to the removal from “a representative
of Columbus Radiology.” His declaration is silent on
whether that representative was an attorney, and also as to
the precise date of the conversation.
omissions prevent the Court from having every fact it would
like to have in order to decide the motion to remand.
However, the Court does know this. Columbus Radiology was
served on January 31, 2017. It likely had thirty days to
consent to removal starting with date that the three removing
defendants were served, which was February 2, 2017. See,
e.g., Bierly v. Alusuisse Flexible Packaging, Inc., 184
F.3d 527 (6th Cir. 1999). In that case, it had until March 4,
2017, to make a timely consent. Its first consent - assuming
that the “representative” to whom counsel spoke
had the ability to provide a valid consent - came after
removal, which occurred on March 3, 2017. There is a
possibility that if the consent was valid (but see
Polston v. Millennium Outdoors, LLC, 2017 WL 878230
(E.D. Ky. March 6, 2017), holding that a corporate party can
consent only through counsel), it was timely received, but
the record does not affirmatively reflect that. The notice of
removal refers only to the invalid consent solicited from Mr.
Ticknor. The declaration of counsel does not affirmatively
describe a timely consent.
Court recognizes that there is some disagreement about
whether there is now a 30-day time limit on consenting to
removal. See, e.g., Couzens v. Donohue, 854 F.3d 508
(8th Cir. 2017). There is even a disagreement among district
courts within the Sixth Circuit. Compare Columbus
Equipment Co. v. RKJ Enterprises, LLC, 2015 WL 5023059,
*3 (N.D. Ohio Aug. 24, 2015)(holding that the “the
timing of the consent of [other defendants] to the removal of
this case is critical to the analysis” of compliance
with the rule of unanimity) with Gaynorv.
Miller, 205 F.Supp.3d 935, 940 (E.D. Tenn. 2016)(holding
that “§1446(b)(2)(C) does not require such consent
to be filed within thirty days...”). Rather than
resolve that matter, it is sufficient to say here that there
are substantial doubts about the validity of removal,
including whether proper consent was ever obtained from