Products Liability Law Reporter

A federal district court has held that under the rule of unanimity, 28 U.S.C. §1446(b)(2)(A), the failure to obtain consent from all defendants who were properly joined in a lawsuit precludes removal of the case to federal court.

Here, Joseph Pelle brought a New Jersey state court action against multiple defendants, including Regal Ideas, Inc., “The Hartford,” and Hartford Casualty Insurance Co., alleging products liability for injuries he suffered after falling off an allegedly defective ladder. Regal Ideas filed a notice of removal almost a month after Pelle served process against it. The plaintiff moved to remand. Regal Ideas moved to oppose the motion.

Granting the plaintiff’s motion, the federal district court found that under §1446(b)(2)(A), when a civil action is removed under §1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action. Citing case law, the court noted that exceptions to the consent rule apply where a defendant is an unknown party; is fraudulently joined; or is an unserved, nonresident.

Applying these principles, the court found that the Hartford defendants do not assert that they were fraudulently joined in the lawsuit. Moreover, the court said, the Hartford defendants are diverse from the plaintiff, and it cannot be said that the plaintiff joined them in an effort to defeat diversity or that the claims against them are wholly unsubstantiated or frivolous.

Thus, the court concluded, none of the exceptions to the unanimity rule apply here. Accordingly, the consent of at least one of the Hartford defendants is required for removal of the plaintiff’s claims. Finding that Regal Ideas failed to comply with the removal procedures set forth in §1446(b)(2)(A), the court remanded.

Citation: Pelle v. Dial Indus. Sales, 2019 WL 1513220 (D.N.J. Apr. 8, 2019).

Plaintiff counsel: AAJ member Joseph Monaco, Marlton, N.J.