431 F. App'x 306
5th Cir.2011Background
- Ortiz sued Atlas for Title VII violations and Young for assault and intentional infliction of emotional distress in Hidalgo County, Texas (June 17, 2010).
- Atlas removed to the Southern District of Texas (August 16, 2010) but did not name Young in the removal petition.
- Ortiz moved to remand (September 14, 2010) arguing lack of unanimity among defendants.
- Young consented to removal (September 20, 2010) after the removal was filed.
- District court remanded (November 3, 2010); appellate review follows.
- This appeal challenges whether removal was proper where not all defendants joined within the 30-day window.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal was procedurally defective for lack of unanimous consent. | Ortiz relied on lack of consent as fatal to removal. | Atlas timely removed; Young’s later consent should be allowed. | Removal defective; remand affirmed. |
| Whether equitable powers permit late consent to removal. | Ortiz contends no equitable basis to excuse tardy consent. | Young argues district court should excuse tardiness. | Equitable powers not applied; no justification to permit late consent. |
| Whether Doe v. Kerwood endorses late removal to prevent injustice. | Ortiz emphasizes strict application of unanimity rule. | Kerwood allows some late removal in exceptional circumstances. | Kerwood not satisfied; no injustice to warrant exception. |
Key Cases Cited
- Webb v. Investacorp, Inc., 88 F.3d 252 (5th Cir. 1996) (standards for propriety of removal reviewed de novo)
- Tri-Cities Newspapers, Inc. v. Tri-Cities Pressmen & Assistants’ Local 349, 427 F.2d 325 (5th Cir. 1964) (unanimity of consent rule for removal)
- Gillis v. Louisiana, 294 F.3d 755 (5th Cir. 2002) (defendant unanimity requirement under §1446(a))
- Doe v. Kerwood, 969 F.2d 165 (5th Cir. 1992) (defendants must act collectively to remove multi-defendant actions)
- Brown v. Demco, 792 F.2d 478 (5th Cir. 1986) (exceptional circumstances may permit removal after 30 days)
- Getty Oil Co. v. Ins. Co. of N. Am., 841 F.2d 1254 (5th Cir. 1988) (equitable exceptions to removal timing)