above would permit defendant B to file for removal up until March 31st.
For obvious reasons, neither the Plaintiffs' nor the Defendants' approach to this dilemma is completely satisfactory. The rule advanced by Plaintiffs is unfavorable to defendants who may be foreclosed from removal before they have been served. Similarly, the rule advanced by defendants is unsatisfactory because it creates an open-ended right to removal for all defendants.
Federal courts have consistently construed removal statutes strictly and, on the whole, against the right of removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S. Ct. 534, 95 L. Ed. 702 (1951); White v. Baltic Conveyor Co., 209 F.Supp. 716 (D.N.J.1962). In Shamrock Oil & Gas Corp. the Supreme Court cautioned against liberal construction of the statute:
Not only does the language of the Act of 1887 evidence the Congressional purpose to restrict the jurisdiction of the federal courts on removal but the policy of the successive acts of Congress regulating the jurisdiction of the federal courts is one calling for the strict construction of such legislation.
313 U.S. at 108.
In accordance with the principles of strict construction espoused by the Court in Shamrock Oil & Gas Corp., many courts have adopted the approach advanced by the Plaintiffs in this case. For example, in Brown v. Demco, Inc. the Fifth Circuit held that: "if the first served defendant abstains from seeking removal or does not effect a timely removal, subsequently served defendants cannot remove." 792 F.2d at 481 (quoting 1A J. Moore, Moore's Federal Practice, P 0.168 [3.5-5], page 586-87 (2d ed.1991)); accord Pic-Mount Corp. v. Stoffel Seals Corp., 708 F.Supp. 1113 (D.Nev.1989); Dachenbach v. Pamida, Inc., 683 F.Supp. 1268 (S.D.Iowa 1988).
This rule springs from two well established principles. First, the failure of a defendant to remove within 30 days is tantamount to a waiver of its right to remove. The waiver cannot be cured retroactively by joining a subsequently served defendant's notice of removal. Likewise, a defendant which has irretrievably lost its right to remove, may not consent to removal by another defendant. The second principle is that all defendants must join in a petition for removal. If unanimity is lacking, removal is impermissible. See Gorman v. Abbott Laboratories, 629 F.Supp. 1196, 1201 (D.R.I.1986).
In Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp. 528 (E.D.Pa.1982) the first defendant, G.A.F. was served on February 18, 1982. Another defendant, Bell Asbestos Mines ("Bell"), was served on March 3, 1982. On April 1, 1982, 29 days after service upon Bell and 42 days after service upon G.A.F. Bell filed a petition for removal. Id. at 529.
The district court concluded that removal was not timely. The court recognized that strict construction of the federal removal statute may, at times, impart harsh consequences. The court concluded, however, that the result in the pending case was equitable because Bell, the removing defendant, was served within thirty days of G.A.F. and consequently, had the opportunity to persuade G.A.F. to join in a timely application for removal. Id. at 530.
Similarly, in the case at bar, the removing defendant, Resurgens, was served approximately eight days after Phillips received a copy of the pleadings on April 27, 1992. Resurgens, therefore, had an opportunity to persuade Phillips to file a notice of removal in a timely manner. Moreover, because Phillips, the Chief Executive Officer and Director of both Resurgens and Com Systems, was served with a copy of the pleadings on April 27, 1992, Resurgens had constructive notice of this action on that date. Resurgens, therefore, was afforded thirty days in which to file for removal.
Plaintiffs' motion to remand is granted. An appropriate order will be entered.
DICKINSON R. DEBEVOISE, U.S.D.J.
August 26, 1992
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 796 F. Supp. 812.
ORDER - August 27, 1992, Filed
This matter having been opened to the court upon application of Dechert, Price & Rhoads, counsel for the Plaintiffs to remand the case to state court; and the court having considered all papers submitted in support of and in opposition to said motion; and in accordance with the opinion filed on this date;
IT IS on this 26th day of August, 1992
ORDERED as follows:
1. Plaintiffs' motion is granted;
2. Plaintiffs' action is remanded to the Superior Court of New Jersey.
DICKINSON R. DEBEVOISE, U.S.D.J.