United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
matter comes before the Court without a hearing on the Motion
to Remand (Doc. 24) filed by the Plaintiff, James Griffin
(henceforth, “Griffin”), and the response in
opposition (Doc. 31) filed by the Defendants.
filed this products liability case in state court on February
9, 2018. In his Complaint (Doc. 2), he alleges that a gas
grill he purchased from a store operated by Defendant
Lowe's Companies, Inc. (“Lowe's”)
exploded when he tried to use it, causing him to suffer
serious injuries. Griffin is a Florida resident. Lowe's
is a North Carolina company; the other two defendants - LG
Sourcing, Inc. (“LG Sourcing”) and Nexgrill
Industries, Inc. (“Nexgrill”) - are residents of
California for purposes of diversity
jurisdiction. Griffin alleges that all three Defendants
played a role in “designing, manufacturing, assembling,
producing, importing, distributing, supplying, marketing, and
selling” his grill. (Doc. 2 at 1-2).
March 12, 2018, the matter was removed to this Court pursuant
to 28 U.S.C. §1446(b) on the basis of diversity
jurisdiction. The Notice of Removal (the
“Notice”) (Doc. 2) was filed by Defendants
Lowe's and Nexgrill. (Doc. 1 at 1). According to the
Notice, those parties had been served on February 16 and
February 19, respectively. (Doc. 1 at 2). The attorney who
filed the Notice of Removal informed the Court in that
document that, while he did not think that Defendant LG
Sourcing had been served at that time,
[t]he undersigned will be representing Defendants Lowe's,
Nexgrill, and LG Sourcing, Inc. in this action and can
represent to the Court that all Defendants consent to the
(Doc. 2 at 2).
March 16, 2018, counsel for the Plaintiff filed in this court
a return of service for LG Sourcing (Doc. 6), indicating that
it had been served on February 16 - i.e., several
weeks before the filing of the Notice of
Removal. On March 29, 2018, LG Sourcing filed a
notice (Doc. 15) informing the Court of its consent to the
of the instant motion, Griffin contends that the Notice of
Removal does not reflect consent on the part of LG Sourcing
to the removal, and that, as a result, remand is required.
U.S.C. § 1441 authorizes a defendant to seek removal to
federal court of a suit originally brought in state court.
The procedure for such removals is governed by 28 U.S.C.
§ 1446. Where, as here, an action is removed pursuant to
Section 1441(a),  Section 1446 requires that all defendants
who have been properly joined and served must join in or
consent to the removal of the action, and it provides that
each defendant shall have 30 days after receiving or being
served with the initial pleading or summons to file the
notice of removal. 28 U.S.C. § 1446(b)(2). Failure to
abide by this so-called “unanimity requirement”
requires a remand of the case back to state court. See,
e.g., Russell Corp. v. American Home Assur. Co., 264
F.3d 1040, 1050 (11th Cir. 2001).
contends remand is required in this case because the Notice
of Removal “does not reflect [LG Sourcing]'s
consent to remove” and because LG Sourcing did not
otherwise join in or indicate its consent to removal within
the required 30-day time period, thereby violating the
unanimity requirement. (Doc. 24 at 3). Taken literally,
Griffin is wrong on the facts, because as quoted
supra, the Notice of Removal clearly states that all
of the Defendants, including LG Sourcing, consent to the
removal. (Doc. 2 at 2). Griffin contends that the
representation made in the Notice of Removal - i.e.,
that the attorney filing the notice would be representing the
non-moving party, and that party consented to removal - was
legally insufficient to satisfy the unanimity requirement.
(Doc. 24 at 5). However, the cases he cites in support of
this position are not on point or not persuasive.
first such case cited by Griffin, Diebel v. S.B. Trucking
Co., 262 F.Supp.2d 1319 (M.D. Fla. 2003), the notice of
removal made no reference at all to one of the defendants -
who had been served when the notice was filed and who was
represented by a different attorney than the one who filed
the notice - and that defendant did not attempt to indicate
consent to removal within the required thirty-day period.
Thus, the Diebel court did not consider the issue of
whether the non-moving defendant had consented to removal.
Griffin's second case, Smith v. Health Ctr. of Lake
City, Inc., 252 F.Supp.2d 1336 (M.D. Fla. 2003), the
court stated that one defendant's unsupported statement,
in the Notice of Removal, that the other defendants concurred
in the removal was insufficient to satisfy the unanimity
rule, even though counsel for that defendant subsequently
came to represent the others. However, the plaintiff had
waived the ...