United States District Court, S.D. Florida
ORDER DENYING MOTION TO REMAND
L. ROSENBERG UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff's Motion
to Remand to State Court. Mot., DE 14. The Motion has been
fully briefed. See Def. Resp., DE18 amended
at DE 24; Pl. Reply, DE 26. On Defendant's request,
the Court set a hearing on the Motion. See DE 30; DE
32. At the hearing, the Court heard oral argument as well as
testimony regarding service of process on August 13, 2019. DE
Defendant School Board removed this action from state court
on June 6, 2019, based on Plaintiff's allegations that
Defendants violated Title VII in terminating Plaintiff from
her position as a school bus driver. See Notice of
Removal, DE 1; Compl., DE 1-2. On July 8, 2019, Plaintiff
timely filed the instant Motion to Remand, which
argues that the Notice of Removal was defective for violating
the “Rule of Unanimity.” Mot., DE 14, 1.
to the Rule of Unanimity, “all defendants who have been
properly joined and served must join in or consent to the
removal of” an action removed under Section 1441(a). 28
U.S.C. § 1446(b)(2)(A); see also Russell Corp. v.
Am. Home Assur. Co., 264 F.3d 1040, 1049 (11th Cir.
2001). “If all defendants do not consent to removal,
this constitutes a defect in removal procedure under 28
U.S.C. § 1447(c), making removal improper.”
Hoar Constr., LLC v. Markel Serv., Inc., No.
1:17-CV-24144-KMM, 2018 WL 8260864, at *1 (S.D. Fla. Feb. 21,
2018) (quoting Smith v. Health Ctr. of Lake City,
Inc., 252 F.Supp.2d 1336, 1338-39 (M.D. Fla. 2003)).
“Like all rules governing removal, the unanimity rule
must be strictly interpreted and enforced because of the
significant federalism concerns arising in the context of
federal removal jurisdiction.” Id. (quoting
Stone v. Bank of New York Mellon, N.A., 609
Fed.Appx. 979, 981 (11th Cir. 2015). Nonetheless, there are
three recognized exception so the Rule of Unanimity.
Specifically, the Rule of Unanimity does not apply if either:
“(1) the non-consenting defendants had not been served
with process at the time the notice of removal was filed; (2)
the unconsenting defendants are nominal or formal defendants;
or (3) removal is pursuant to § 1441(c).”
Bradwell v. Silk Greenhouse, Inc., 828 F.Supp. 940,
943, n. 2 (M.D. Fla. 1993).
Plaintiff filed her Complaint against both the School
District of Palm Beach County (the “School
District”) and the School Board of the Palm Beach
County (the “School Board”). Compl., DE 1-2. The
Board filed the Notice of Removal, DE 1, but the District did
not join in or consent to that filing. Accordingly, Plaintiff
argues that the Notice of Removal was defective, and that the
case must be remanded. See Mot., DE 14. In response,
the Board argues that two exceptions to the Rule of Unanimity
apply here - the exception for defendants that have not been
served and the exception for nominal defendants. See
Am. Resp., DE 24.
issue of service, the Board argues that service was not
properly effectuated on the District at the time of removal.
See Id. Plaintiff however maintains that both the
Board and District were both properly served. See
Reply, DE 26. In support of this contention, Plaintiff has
filed three acknowledgements of service. See DE 19;
DE 20; DE 21. Most significantly, Plaintiff asserts that the
District was served by way of its paralegal, Ms. Lesline
Alexander. See Am. Return of Service, DE 19. Ms.
Alexander testified in person and answered direct questions
from the Court. In addition, the process server who filed the
Amended Return of Service, DE 19, also testified
telephonically and answered direct questions from the Court.
After hearing all of the testimony and considering the
evidence, the Court concludes that service of process was not
properly effectuated on the Defendant District at the time of
removal. Specifically, Ms. Alexander testified to her process
for intake of all civil summonses served on both the Board
and/or the District. She also testified about her process for
reviewing summonses that may have been accepted by other
employees of her office. Ms. Alexander had a specific
recollection of the day on which she was served with the
summons in this case as to the Board, but maintained
that a second summons was not provided as to the
District. Finally, the Court notes
that the Return of Service filed with regard to the District
was filed as an Amended Return of Service, and the
process server could not answer the Court's questions
about why the Return would have needed to be amended.
Accordingly, the Court finds Ms. Alexander's testimony to
be credible, and finds that service had not be properly
effectuated on the Defendant District at the time of removal
on June 6, 2019.
result, the District's failure to consent to the Notice
of Removal does not render the Notice defective, because the
Rule of Unanimity only requires all defendants who have been
served to join in the Notice.
it is hereby ORDERED and
ADJUDGED that the Plaintiffs Motion to
Remand, DE 14, is DENIED.
AND ORDERED in Chambers, West Palm Beach, Florida,
this 15th day of August, 2019.
 “A motion to remand the
case…must be made within 30 days after the filing of
the notice of removal.” 28 U.S.C. § 1447(c).
Thirty days after the filing of the Notice of Removal fell on
July 7, 2019. However, because July 7 fell on a Saturday, the
time period to file a ...