Tricorp Construction, Inc. v. Guerdon Enterprises, Inc.
2:19-cv-02400
E.D. Cal.May 5, 2020Background:
- Plaintiff Tricorp Construction filed suit in Sacramento County Superior Court; Guerdon Enterprises removed the case to federal court on November 27, 2019, asserting diversity jurisdiction under 28 U.S.C. § 1332.
- Acc-U-Set Construction had been served with the complaint on November 10, 2019, before Guerdon filed the notice of removal.
- On February 13, 2020, Acc-U-Set moved to remand, arguing it never consented to removal and that the removal notice did not show consent from co-defendants.
- Guerdon filed a statement of non-opposition on April 3, 2020, consenting to remand.
- The court acknowledged the statutory rule that all properly served defendants must join or consent to removal and noted a 30-day deadline to seek remand for procedural defects.
- The court granted Acc-U-Set’s motion to remand (despite its untimeliness) because Guerdon’s later statement of non-opposition made retention in federal court inappropriate; the May 14, 2020 status conference was vacated.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal requires consent of all properly served defendants | Notice asserted diversity jurisdiction and described defendants' citizenship (no affirmative assertion of unanimous consent) | Acc-U-Set: it did not consent; was served before removal, so removal is procedurally defective | All properly joined and served defendants must join or consent to removal; failure to obtain consent is a removal "defect" |
| Whether a remand motion based on a procedural defect is timely | No opposing argument recorded from plaintiff on timeliness | Acc-U-Set: moved nearly three months after removal, exceeding 30-day deadline in §1447(c) | Remand motion was untimely under §1447(c) (30-day rule) |
| Effect of a removing defendant's later consent/non-opposition to remand | Not directly argued; the practical result favors remand | Guerdon: filed statement of non-opposition and consent to remand | Court treated Guerdon’s non-opposition as dispositive and granted remand despite Acc-U-Set’s delay |
Key Cases Cited
- Aguon-Schult v. Guam Election Com'n, 469 F.3d 1236 (9th Cir. 2006) (failure to obtain all defendants' consent qualifies as a removal procedural defect)
- California v. NRG Energy, Inc., 391 F.3d 1011 (9th Cir. 2004) (same rule regarding unanimous consent for removal)