Fourth Circuit Nixes Requirement that All Defendants Physically Sign Notice of Removal To Federal Court

Keywords: Class Action Fairness Act, Eighth Circuit, Federal Courts Jurisdiction and Venue Clarification Act of 2011, Fifth Circuit, Fourth Circuit, Getty Oil Corp. v. Ins. Co. of N. Am., Gosmeyer v. McDonald, Harper v. AutoAlliance Int'l Inc., Mayo v. Bd. of Educ., Ninth Circuit, Pritchett v. Cottrell Inc., Proctor v. Vishay Intertechnology Inc., removal, Seventh Circuit, Sixth Circuit

The Fourth Circuit recently weighed in on a technical question involving the process for removing a case against multiple defendants to federal court—namely, whether every defendant must actually sign the notice of removal. The Fourth Circuit concluded that "[w]e can see no policy reason why removal in a multiple-defendant case cannot be accomplished by the filing of one paper signed by at least one attorney, representing that all defendants have consented to the removal." Mayo v. Bd. of Educ., Nos. 11-1816, 11-2037 (4th Cir. Apr. 11, 2013).

The Fourth Circuit is correct. That said, at least some courts are apparently willing to impose pointless technical requirements despite the lack of justification. The fact that there's a circuit split on this issue is a perfect example. In the wrong court, the failure to get all defendants in a multi-defendant case to confirm their consent to removal in the correct way can open a trapdoor through which the case will fall back into state court.

In most class actions, this issue does not arise because the Class Action Fairness Act (CAFA) allows a single defendant to remove a qualifying class or mass action even without the other defendants' consent. 28 U.S.C. § 1453(b). But CAFA isn't always the basis for removal. Perhaps the lawsuit involves a federal question or satisfies the test for classic diversity jurisdiction, but doesn't satisfy CAFA's definition of a class or mass action or its $5 million amount-in-controversy requirement (or the defendant doesn't want to have to demonstrate that at least $5 million is at stake). Or perhaps the class action falls into CAFA's local-controversy or home-state exception. If so, the notice of removal must satisfy the requirement in 28 U.S.C. § 1446(b)(2) that "all defendants who have been properly joined and served must join in or consent to the removal of the action." And typically that joinder or consent must be done no later than 30 days after the last-served defendant received the complaint. Id. § 1446(b)(2)(B)-(C).

Unfortunately, the removal statute doesn't outline in detail how...