United States District Court, N.D. Ohio, Eastern Division
JOHN E. MARTIN, Plaintiff,
DANIEL J. BENNETT, et al., Defendants.
MEMORANDUM OF OPINION AND ORDER
A. BARKER JUDGE
matter comes before the Court upon the Motion for Remand of
Plaintiff John E. Martin. (Doc. No. 14.) Defendants Daniel J.
Bennett (“Bennet”), John Ball
(“Ball”), and Village of Roaming Shores
(“Roaming Shores”) filed a brief in opposition on
November 15, 2019, to which Plaintiff replied on November 22,
2019. (Doc. Nos. 15, 16.) For the following reasons,
Plaintiff's Motion for Remand (Doc. No. 14) is DENIED.
filed this civil rights action in the Ashtabula County Court
of Common Pleas on September 16, 2019 against Defendants
Bennett, Ball, Roaming Shores, William Badell
(“Badell”), and John Does No. 1-10. (Doc. No.
1-1.) While the case was pending in state court, Plaintiff
did not serve or attempt to serve Defendant Badell.
(See Doc. No. 15-1.) On October 15, 2019, Defendants
Bennett, Ball, and Roaming Shores joined in filing a Notice
of Removal to this Court. (Doc. No. 1.) Subsequently, on
November 9, 2019, Plaintiff served Defendant Badell with the
Summons and Complaint. (Doc. No. 13.)
November 14, 2019, Plaintiff moved to remand this case to
state court on the basis that removal was improper because
Defendant Badell never consented to removal of the case to
this Court. (Doc. No. 14.) Defendants Bennett, Ball, and
Roaming Shores filed a brief in opposition to Plaintiff's
Motion for Remand on November 15, 2019. (Doc. No. 15.) They
contend that Defendant Badell was not required to join in or
consent to the removal because he had not been served at the
time the removal petition was filed. (Id. at 5-6.)
Plaintiff then filed a reply in support of his Motion for
Remand on November 22, 2019. (Doc. No. 16.)
Law and Analysis
defendant seeking removal to federal court must obtain the
consent of all other ‘properly joined and served'
defendants to ensure the motion is unanimous.”
Chambers v. HSBC Bank USA, N.A., 796 F.3d 560, 564
(6th Cir. 2015) (quoting 28 U.S.C. § 1446(b)(2)(A)).
“This requirement, otherwise known as the ‘rule
of unanimity,' ensures that all defendants have a say
before a case involving their interests is removed from state
court.” Id. However, there is an exception to
this general rule “when the non-joining defendant was
not served with service of process at the time the removal
petition was filed.” Underwood v. Ciena Health Care
Mgmt., Inc., No. 08-11024, 2008 WL 1776961, at *1 (E.D.
Mich. Apr. 17, 2008). Under this “well settled
exception” to the rule of unanimity, defendants who are
not served with process at the time of removal need not join
in or consent to removal. Yarborough v. BondCote
Corp., No. 2:07-CV-05, 2008 WL 11452525, at *2 (E.D.
Tenn. Mar. 25, 2008).
courts in the Sixth Circuit have regularly found that removal
was proper even though an unserved defendant did not join in
the notice of removal. E.g., Underwood,
2008 WL 1776961, at *1 (denying plaintiff's motion to
remand even though a codefendant did not consent to removal
because the codefendant “was not served at the time
that Ciena sought removal”); Yarborough, 2008
WL 11452525, at *2 (“Defendants Tri-Technologies, Inc.
and David Hirsch were clearly not served with process at the
time of the notice of removal, nor were they otherwise joined
in the action at the time, and their consent to removal was
not required.”); Kralj v. Byers, No. 4:06 CV
0368, 2006 WL 8449912, at *3 (N.D. Ohio Apr. 5, 2006)
(“Byers was not served with a copy of the Amended
Complaint at the time of removal, and, therefore, his consent
to removal is excused.”).
here, Defendant Badell had not been served at the time that
Defendants Bennett, Ball, and Roaming Shores sought removal.
Defendants Bennett, Ball, and Roaming Shores filed their
Notice of Removal on October 15, 2019, while Plaintiff did
not complete service on Defendant Badell until November 9,
2019. (Doc. Nos. 1, 13.) Consequently, Defendant Badell's
consent to removal was not required. Plaintiff argues that
this exception to the rule of unanimity is inapplicable in
this case because Defendant Badell was served prior to
Plaintiff's Motion for Remand, but Plaintiff cites no
authority that supports this argument. (Doc. No. 16 at 1-2.)
Nor, as Plaintiff contends, is the application of this
exception inequitable to later-served defendants (Doc. No. 14
at 2), as a defendant served after removal still has the
right to seek remand. See 28 U.S.C. § 1448
(“This section shall not deprive any defendant upon
whom process is served after removal of his right to move to
remand the case.”). Because Defendant Badell's
consent to removal was not required, the Court finds that
removal was proper.
reasons set forth above, Plaintiff's Motion for Remand
(Doc. No. 14) is DENIED.
IS SO ORDERED.