Thursday, October 22, 2009
Ninth Circuit decision deepens circuit split on the process for establishing co-defendants' unanimous joinder in removal
Earlier this month the Ninth Circuit decided Proctor v. Vishay Intertechnology Inc. (No. 07-16527), 2009 WL 3260535, 2009 U.S. App. LEXIS 22254. The opinion addresses the substantive requirements for SLUSA removability as well as the timeliness of removal when the basis for SLUSA-removal arose only after the state-court complaint was amended. The Ninth Circuit also took sides in a circuit split over the process for demonstrating that all defendants join in the removal, concluding: "[A] notice of removal can be effective without individual consent documents on behalf of each defendant. One defendant's timely removal notice containing an averment of the other defendants’ consent and signed by an attorney of record is sufficient."
Here's the Ninth Circuit's full analysis on the issue:
The Sixth Circuit requires only that "at least one attorney of record" sign the notice and certify that the remaining defendants consent to removal; it does not insist that each defendant submit written notice of such consent. In contrast, the Fifth, Seventh, and Eighth Circuits have adopted the more demanding requirement that each co-defendant must submit a timely, written notice of consent to joinder.
We adopt the Sixth Circuit’s position as fully sufficient to implement the unanimous joinder rule. The so-called "rule of unanimity," announced by the Supreme Court in Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248 (1900), as an interpretation of a predecessor removal statute, merely says that "all the defendants must join in the application" for removal. Chicago does not specify how defendants must join in removal. Nor does any federal rule or statute specifically prescribe a particular manner in which codefendants' joinder must be expressed. In the absence of any rule governing joinder in removal, we turn to the general principles that govern procedures for removal and for attorney representations to district courts generally. Under 28 U.S.C. § 1446(a), "[a] defendant or defendants desiring to remove any civil action" must file a "notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure." Rule 11, in turn, provides that "[e]very pleading, written motion, and other paper must be signed by at least one attorney of record," Fed. R. Civ. P. 11(a), and that "[b]y presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney . . . certifies that . . . the factual contentions [therein] have evidentiary support . . . ." Id. 11(b).
Applying these general principles, we conclude that the filing of a notice of removal can be effective without individual consent documents on behalf of each defendant. One defendant's timely removal notice containing an averment of the other defendants’ consent and signed by an attorney of record is sufficient. Ernst & Young submitted such an averment under threat of sanctions pursuant to Rule 11; the other co-defendants were notified of the removal notice and had an opportunity to object to it. These two considerations--the availability of sanctions and of objection--mitigate concerns that one defendant might falsely state the other defendants' consent, or that one defendant might game the system by silently allowing another to remove and, if the federal forum proves disadvantageous, belatedly object that he had not consented.