It has long been the rule in the Fifth Circuit that all properly joined and served defendants must join in the notice of removal or otherwise consent to removal within the 30 day period set forth in 28 U.S.C. § 1446(b). While each defendant need not sign the notice of removal, there must be "some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have the authority to do so, that it has actually consented to such action.
Plaintiff filed pro se petition(s) against defendants city police department and broadcast network for libel, slander, malicious prosecution, and defamation of character for a traffic incident stop that resulted in a charge of contributing to the delinquency of a minor. Defendant city removed the case to federal court pursuant to 28 U.S.C. § 1441 on the sole basis of federal question jurisdiction, 28 U.S.C. § 1331. However, the notice of removal conspicuously failed to address whether co-defendant network joined in, or otherwise consented to removal. Defendant network cured this omission by clarifying, via the instant motion to remand, that it did not consent to removal. Plaintiff opposed, claiming that he properly joined both defendants.
Whether defendant network’s consent to removal was necessary before the action may be removed from state court to federal court.
The court granted defendant network’s motion to remand. All properly joined and served defendants must join in the notice of removal or otherwise consent to removal within the 30 day period set forth in 28 U.S.C. § 1446(b). Each defendant need not sign the notice of removal so long as there some sort of timely written indication from each properly served defendant that it consented to such action. In this case, defendant network timely raised its refusal to consent to removal, thus, a remand was in order.