On removal jurisdiction's unanimous consent requirement.

AuthorPrescott, Adam R.
PositionNOTES

TABLE OF CONTENTS INTRODUCTION I. THE FUNDAMENTALS OF REMOVAL JURISDICTION A. A Brief History B. The Removal Procedure 1. Basic Principles of Removal 2. Subject Matter Jurisdiction, Timing Rules, and the Filing Process 3. Remand II. THE UNANIMITY RULE: A CIRCUIT SPLIT A. The Vouching Rule 1. Proctor v. Vishay Intertechnology, Inc 2. Harper v. AutoAlliance International, Inc 3. Roybal v. City of Albuquerque B. The Independent-and-Unambiguous Consent Rule 1. Henderson v. Holmes 2. Sansone v. Morton Machine Works, Inc III. THE POLICY OF REMOVAL JURISDICTION: WHY IT WAS CREATED AND WHY IT IS USED A. Removal Based on Diversity Jurisdiction B. Removal Based on Federal Question Jurisdiction C. Practical Reasons To Remove a Case D. Empirical Evidence in Support of Removing a Case IV. DISCUSSION: SELECTING THE BETTER CONSENT RULE A. Unanimity, Personal Jurisdiction, and the Formal Service of Process Requirement B. Consistency with Removal Policy C. The Value of a Clear Rule 1. A Lesson from Hertz Corp. v. Friend 2. Lowering Transaction Costs D. Strict Constructionist Interpretation of Removal Rules E. The Proper Interpretation of Rule 11 1. The Need for Individually Signed Representations to the Court 2. How Vouching May Circumvent Rule 11 CONCLUSION INTRODUCTION

Unanimity is often difficult to achieve, even on the most insignificant issues. (1) As a result, in American law and politics unanimous agreement is rarely required; instead, majority or super-majority consensus is the norm. (2) In federal civil procedure, however, unanimity is required for defendants attempting to remove their lawsuits from state court to federal court. (3) Although this unanimity requirement is not in doubt, as courts have enforced it without exception for over a century, (4) uncertainty regarding the removal procedure lingers. Specifically, U.S. federal courts continue to disagree about how defendants must express their consent to the removal. (5) Given the considerable impact a successful--or unsuccessful--removal procedure can have on the final outcome of a lawsuit, (6) this judicial vacillation places litigants in a procedural quandary, leaving both plaintiffs and defendants unsure of what exactly is required to remove a case. (7)

There are two competing approaches to the practical application of the unanimity rule in a removal proceeding, and whenever a plaintiff challenges removal on this procedural ground, the court must decide which interpretation is appropriate. Numerous federal courts require all defendants to individually express their consent to removing the case, (8) whereas many other federal courts permit one defendant to pledge in the notice of removal that all the other defendants have consented to the action. (9) These different approaches to the unanimity requirement exist in large part because the rule is judicially created and, consequently, the courts lack any clear statutory guidance. (10) As such, the exact details of the rule have been left to individual federal courts to develop and apply.

This Note investigates the current judicial disagreement regarding the unanimous consent requirement and ultimately argues that, based on several considerations, the best approach for federal courts to apply is the individual consent rule: this standard prohibits an attorney from vouching for the consent of the other defendants and instead requires each defendant to submit his own, written consent to the court. In reaching this conclusion, Part I discusses the history and fundamentals of the removal procedure. Part II then explores and analyzes the most pertinent and illustrative cases regarding each interpretation of the unanimity rule. These cases demonstrate the current judicial split, the judicial considerations behind each interpretation of the unanimity rule, and how an improper removal can significantly affect the final outcome of a case. Next, Part III explores the policy rationales behind removal jurisdiction. This discussion is essential to resolving the current judicial split because any interpretation of the unanimity rule must be consistent with the general policy aspirations of removal jurisdiction.

Finally, Part IV offers several arguments for and against each interpretation of the unanimity rule, including the proper application of Federal Rule of Civil Procedure 11 within the removal statutes, the importance of having clear procedural rules, and the need for courts to strictly construe all aspects of the removal process. In the end, this Note concludes that the independent-and-unambiguous consent rule is much more than a vexatious requirement that courts impose on defendants. Instead, the rule is superior because it reflects an accurate interpretation of the removal statutes, protects a defendant's right to due process, promotes certainty and reduces superfluous litigation, and furthers the numerous policy goals of the unanimity rule and of removal jurisdiction in general.

  1. THE FUNDAMENTALS OF REMOVAL JURISDICTION

    Removal is the process by which defendants in a civil case may move to federal court an action that a plaintiff originally filed in state court. Although removal jurisdiction is not grounded in the Constitution, it has existed in American jurisprudence for more than two centuries. (11) That removal is constitutional and within Congress's power to implement is a settled question in American law, (12) and today the procedure operates as one of three ways a party may invoke federal jurisdiction--along with filing directly in federal court or seeking the review of a state court decision in federal court. (13)

    In many lawsuits, the state and federal courts share jurisdiction, giving plaintiffs the decision of whether to proceed initially in either judicial system. (14) In these situations of concurrent jurisdiction, the plaintiff and defendant each have an opportunity to avoid state court--the plaintiff by initially filing in federal court and the defendant by removing the action to federal court after the plaintiff files in state court. Thus, assuming federal jurisdiction exists, the state court will hear the case only when both parties agree that state court is the best forum for the dispute. (15) Within this jurisdictional tug of war, removal provides defendants with the rare opportunity to alter the forum. (16) Nevertheless, the plaintiff, as master of the complaint, still retains significant control over the forum in which the lawsuit will be litigated (17) and has numerous tools at his disposal to foil a defendant's ability to remove the case. (18)

    Although simple in theory, removal is a complicated legal procedure with many moving parts. (19) As one federal judge asserted nearly a century ago, "[t]hat there is no other phase of American jurisprudence with so many refinements and subtleties, as relate to removal proceedings, is known by all who have to deal with them." (20) Another commentator described the law regarding removal jurisdiction as "a snare and a delusion." (21) Regardless of the difficulties surrounding the removal process, it remains an important and dependable arrow in the American litigator's quiver, as evidenced by the fact that as many as 11 percent of the cases in federal court during a given year entered that forum through removal. (22)

    1. A Brief History

      The scope and application of removal jurisdiction has evolved over the past several centuries. At English common law, no removal procedure existed. (23) In the United States, the Judiciary Act of 1789 first enumerated the right to removal, but this law limited removal to diversity jurisdiction actions only. (24) The 1789 Act, moreover, permitted removal by "aliens, nonresident defendants, and parties to suits concerning land titles in which one party relied on a [title granted in a nonforum state] and an adverse party relied on a grant from the state in which the suit was brought." (25) Nearly a century later, the Judiciary Act of 1875 significantly expanded the ability of litigators to remove an action by allowing the removal of nearly every lawsuit over which there was federal jurisdiction and, for the first time, by granting "either party" to the suit--that is, either the plaintiff or the defendant--the opportunity to remove. (26) At all other times since the adoption of the 1789 Judiciary Act, the right of removal had been limited to only defendants. (27)

      Twelve years after the 1875 Judiciary Act, Congress enacted the Judiciary and Removal Act of 1887. The 1887 Act provided the modern foundation for removal jurisdiction by restricting the removal power to only defendants and by prohibiting removal when the defendant's pleadings were the exclusive basis for federal jurisdiction. (28) It stated:

      [A]ny suit of a civil nature ... of which the circuit courts of the United States are given original jurisdiction ... which may now be pending, or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the circuit court of the United States for the proper district. (29) Today, 28 U.S.C. [section] 1441, one of several modern removal statutes, is based on the 1887 Act (30) and similarly specifies that only defendants have the statutory right to remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." (31) Specifically, removal may be based on diversity jurisdiction, (32) federal question jurisdiction, (33) or on one of several statutory grounds. (34)

    2. The Removal Procedure

      1. Basic Principles of Removal

        Although commentators have described removal as a "peculiar procedure" and a "judicial curiosity," there are several consistent features within the process. (35) First, [section] 1441 allows a case to be removed only from a state court to a federal court. (36) There is no procedure for moving a case from federal court to state court or from one state court to another state court. (37) Second...

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