Removal in the Sixth Circuit: Ask Questions Now, Remove Later
By When it comes to satisfying the federal removal procedure statute, 28 U.S.C. ยง 1446, some circuits allow parties to “remove first and ask questions later.” Not so in the Sixth Circuit. As one defendant seeking removal recently learned, the proper procedure in this circuit is to ask questions now and remove later.
Under the rule of unanimity, a party seeking removal of a case to federal court must show that all defendants who have been served in the case either join in or consent to removal. In Pettis v. City of Memphis, 2010 WL 447022, the U.S. District Court for the Western District of Tennessee held that the City of Memphis’s notice of removal violated the rule because GEICO, a defendant who had been served in the case, never consented to removal.
The City argued that it did not need GEICO’s consent because the circuit court docket sheet, on which the City relied in determining service, contained no proof of service for GEICO. The City cited cases from the Fifth Circuit for the proposition that the failure to join a served defendant can be cured by reasonable diligence, such as checking the court docket sheet for proof of service.
In rejecting this argument, the Court explained that in the Fifth Circuit, the 30-day period for removal begins to run 30 days after the first defendant is served, thus explaining the “remove first and ask questions later” rule. In the Sixth Circuit, however, the last served defendant has 30 days to remove a case to federal court, thus allowing defendants to “ask questions now and remove later.” So, the City should have contacted GEICO to ask if service of process had been made before filing a notice of removal.
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