431 F. App'x 306
5th Cir.
2011

Nicole ORTIZ, Plaintiff-Appellee v. Thomas A. YOUNG; Atlas Credit Company, Incorporated, Defendants-Appellants.

No. 10-41252

United States Court of Appeals, Fifth Circuit.

June 28, 2011.

431 Fed. Appx. 306

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999) (noting that a party may not raise a new theory of relief for the first time on appeal). Likewise, to the extent Reeves relies on documentary evidence that was not before the district court, such evidence may not be considered on appeal. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n. 26 (5th Cir.1999) (“An appellate court may not consider new evidence furnished for the first time on appeal and may not consider facts which were not before the district court at the time of the challenged ruling.“).

APPEAL DISMISSED IN PART FOR LACK OF JURISDICTION; AFFIRMED IN PART.

Emerson Emanuel Arellano, Ramon L. Garcia, Law Office of Ramon Garcia, Edinburg, TX, for Plaintiff-Appellee.

John Bennett White, IV, Esq., J. Bennett White, P.C., Kurt Mark Noell, Esq., Tyler, TX, for Defendants-Appellants.

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Defendants-Appellants Thomas A. Young (“Young“) and Atlas Credit Com-pany, Inc. (“Atlas“) (collectively “Appellants“) bring this appeal following the district court‘s grant of Plaintiff-Appellee Nicole Ortiz‘s (“Ortiz“) motion to remand. AFFIRMED.

I.

On June 17, 2010, Ortiz filed suit in the 206th Judicial District Court of Hidalgo County, Texas. Her suit against Atlas alleged violations under Title VII of the Civil Rights Act of 1964. Against Young, Ortiz asserted claims against Young, Atlas‘s owner, for assault and intentional infliction of emotional distress. Ortiz served both with citation on July 23, 2010. On August 16, 2010, pursuant to 28 U.S.C. § 1441(b), Atlas filed its application for removal to the Southern District of Texas. Atlas‘s application made no mention of Young. On September 14, 2010, Ortiz filed a motion to remand arguing that removal was defective because not all defendants had consented to removal within thirty days. On September 20, 2010, Young consented to removal. On November 3, 2010, the district court granted Ortiz‘s motion for remand. This appeal followed.

II.

A.

We review de novo a district court‘s determination of the propriety of removal. Webb v. Investacorp, Inc., 89 F.3d 252, 255 (5th Cir.1996).

B.

28 U.S.C. § 1446(a) requires that all defendants join in a petition for removal. Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen & Assistants’ Local 349, 427 F.2d 325, 326-27 (5th Cir.1970). This requires that all served defendants join in the removal petition prior to the expiration of the removal period. Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002). Section 1446(b) explains that the “notice of removal of a civil action or proceeding shall be filed within thirty days” after service of the citation. 28 U.S.C. § 1446(b). In Doe v. Kerwood, 969 F.2d 165 (5th Cir.1992), we held that when a civil action has multiple defendants, as is the case here, then all defendants must act collectively to remove that case. Id. at 167. This requirement has been named the “unanimity of consent rule.” Id.

C.

Here, Atlas timely filed an application to remove the matter. 28 U.S.C. § 1446(b). Young did not. Thus, removal was defective and remand appropriate. Kerwood, 969 F.2d at 169. Young appeals to the district court‘s equitable powers to excuse his tardy application for removal. This court has held that sometimes exceptional or unique circumstances might permit removal after the expiration of the thirty day period prescribed by § 1446(b). Brown v. Demco, 792 F.2d 478, 482 (5th Cir.1986); Getty Oil Co. v. Ins. Co. of N. Am., 841 F.2d 1254, 1263 (5th Cir.1988); Gillis, 294 F.3d at 759. Yet, as Ortiz correctly indicates, those instances where this court has exercised its equitable powers to permit a party to consent to removal outside of the statutorily prescribed time frame often concern plaintiff conduct, and not untimely consent to removal by a defendant. For example, in Brown, we stated that “[e]xceptional circumstances might permit re-moval” when confronting bad faith efforts to prevent removal. Id. at 482. Meanwhile, Kerwood permits removal outside of the window in order to prevent injustice. Kerwood, 794 F.3d at 759. Here, no such conduct by Ortiz in her service of citation compels the court to exercise its equitable powers. Moreover, no injustice will be obviated by the court condoning tardy consent to removal.

As an aside, we note that in neither his opening brief nor in his reply brief does Young address which exceptional circumstances should compel the district court to permit him to consent to removal outside of the thirty day period outlined in 28 U.S.C. § 1446. Instead, Young merely quibbles with the district court‘s declining to permit him to do so. Thus, because Young failed to consent to removal as prescribed in 28 U.S.C. § 1446(b), the district court‘s remand of this matter was not in error.

III.

For the reasons stated above, the judgment of the district court is AFFIRMED.

Notes

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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