United States District Court, M.D. Florida, Orlando Division
DALTON, UNITED STATES DISTRICT JUDGE.
Defendants Orange County and Orange County Fire &
Rescue's (collectively, “Orange County
Defendants”) removal of this case (Doc. 1
(“Notice”)), Plaintiffs David
and Charyl Euwema move to remand. (Doc. 37
(“Motion”).) Most Defendants
oppose. (Docs. 47, 50, 51, 52.) On review, the
Motion is granted.
case stems from Defendants' response to a fire at
Plaintiffs' home. (See Doc. 1-1.) On July 28,
2016, a neighbor called 9-1-1 reporting a fire on
Plaintiffs' porch in unincorporated Osceola County,
Florida. (Doc. 1-1, ¶¶ 21-24.) Plaintiffs say the
fire was “contained to the front porch[, ] . . . was
considerably small, and was nearly snuffed-out.”
(Id. ¶ 23.) Units from Defendants Osceola
County Fire Rescue, Kissimmee Fire Department, St. Cloud Fire
Rescue, and Orange County Fire Rescue were dispatched.
(Id. ¶ 24.) Plaintiffs claim Defendants'
actions (and inactions) upon arrival caused the home to burn
to the ground and were in part because of Plaintiffs'
unidentified disabilities. (Id. ¶¶ 25-29.)
So Plaintiffs sued Defendants in state court for negligence
and violations of the Americans with Disabilities Act
(“ ADA”) and 42 U.S.C. §
1983. (Id. ¶¶ 5 1 -290.)
September 9, 2019, the Orange County Defendants-with
Defendants Osceola County, Osceola County Fire Rescue &
EMS, City of St. Cloud, and City of St. Cloud Fire
Rescue's consent-removed the case under 28 U.S.C. §
1441(a) as Plaintiffs raised claims falling under federal
question jurisdiction, such as ADA and § 1983 claims.
(See Doc. 1, ¶¶ 4, 8; see also
Id. at 4.) The Notice stated the Orange County
Defendants were unaware of whether any other Defendants had
been served, including Defendant Scott Kilmer and the
Kissimmee Defendants. (See Id. ¶ 5.) The
consenting Defendants then moved to dismiss the complaint.
(See Docs. 9, 10, 35.) Defendant Scott Kilmer
appeared and: (1) moved to seal, remove, or redact his home
address from the record; (2) moved to dismiss the complaint;
(3) moved to strike certain claims and damages requests; (4)
and filed documents in compliance with Court orders. (Docs.
11, 12, 19, 20, 26, 33, 34.) Mr. Kilmer also filed a notice
of consent to removal on October 8, 2019. (Doc. 36.)
seek remand, arguing the Orange County Defendants'
removal violated 28 U.S.C. § 1446(b)(2)'s unanimity
requirement because the Notice wasn't joined by all
properly served Defendants. (Doc. 37.) Briefing complete
(Docs. 47, 50, 51, 52, 64), the matter is ripe.
jurisdiction exists when the court would have had original
jurisdiction over the action. 28 U.S.C. § 1441(a). For
removal to be proper, the removing party must comply with
certain procedural requirements. See 28 U.S.C.
§ 1446. For example, “the law is well settled that
in cases involving multiple defendants, all defendants must
consent to the removal of a case to federal court.”
Russell Corp. v. Am. Home Assurance Co., 264 F.3d
1040, 1049 (11th Cir. 2001) (citations omitted),
abrogated on other grounds by Overlook Gardens Props.,
LLC v. ORIX USA, L.P., 927 F.3d 1194 (11th Cir. 2019);
28 U.S.C. § 1446(b)(2)(A). “The failure to join
all defendants in the petition is a defect in the removal
procedure.” In re Bethesda Mem'l Hosp.,
123 F.3d 1407, 1410 n.2 (11th Cir. 1997).
plaintiff may seek to remand an action back to state court
based on a “procedural defect in the removal of the
case.” Russell Corp., 264 F.3d at 1043-44
(citations omitted). Because of “significant federalism
concerns arising in the context of federal removal
jurisdiction, ” removal rules such as the unanimity
requirement must be “strictly interpreted and
enforced.” Id. at 1049. “[A]mbiguities
are generally construed against removal, ” Jones v.
LMR Int'l, Inc., 457 F.3d 1174, 1177 (11th Cir.
2006) (citation omitted), and “uncertainties are
resolved in favor of remand.” See Burns v. Windsor
Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (citations
omitted). If procedural defects are present, remand is
appropriate. See 28 U.S.C. § 1447(c).
issue is whether the Orange County Defendants' removal
violated 28 U.S.C. § 1446(b)(2)'s unanimity
requirement. (See Doc. 37.) To satisfy the unanimity
requirement, “all defendants who have been properly
joined and served must join in or consent to the removal of
the action.” 28 U.S.C. § 1446(b)(2)(A); see
also Russell Corp., 264 F.3d at 1044. “[E]ach
defendant must join in the removal by signing the notice of
removal or by explicitly stating for itself its consent on
the record, either orally or in writing, within the thirty
day period prescribed in § 1446(b).” Gay v.
Fluellen, No. 8:06-cv-2382-T-3 0MSS, 2007 WL 676219, at
*2 (M.D. Fla. Mar. 1, 2007) (citations omitted). The
thirty-day period is calculated from “the date of
service on that defendant or the removing defendant
(whichever is later).” Rodgers v. Atl. Contracting
& Dev. Corp., No. 2:07-cv-533-FtM-34DNF, 2008 WL
11334891, at *3 (M.D. Fla. Sept. 3, 2008) (citing Bailey
v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1204-05,
1206 n.8 (11th Cir. 2008)). On review, the Orange County
Defendants' removal was procedurally defective.
Notice reveals the Orange County Defendants removed this case
without the consent of three Defendants. (See Doc.
1, ¶¶ 4-5.) At the time of removal, the Orange
County Defendants “[were] unaware if and when other
remaining Defendants may have been served” since the
state court record didn't reflect service and they
hadn't appeared. (See Id. ¶ 5.) But
“courts in the Eleventh Circuit have specifically
recognized that the fact the removing defendant was unaware a
defendant had been served does not provide a basis for
excusing the removing defendant's failure to obtain
consent from that defendant.” Rodgers, 2008 WL
11334891, at *4 (citations omitted). So if a ny of the three
non-consenting Defendants were properly served at the time of
removal and failed to timely consent, this is a procedural
defect to removal warranting remand. See 28 U.S.C.
§ 1446(b)(2)(A); 28 U.S.C. § 1447(c).
service on the Kissimmee Defendants is disputed (see
Doc. 46), let's start with Defendant Scott Kilmer. Mr.
Kilmer was served on September 5, 2019-before the removal.
(See Doc. 37-1, p. 6.) It's undisputed this
service was proper as counsel has appeared on Mr.
Kilmer's behalf, he has filed multiple motions and other
documents, and no pending motion challenges service.
(See Docs. 8, 11, 12, 19, 20, 26, 33, 34, 36.) Mr .
Kilmer filed his “Consent to Removal” expressing
his consent on October 8, 2019 (see Doc. 36)-over
thirty days after he was served. See Rodgers, 2008
WL 11334891, at *3 (discussing the thirty-day consent
period). Because Mr. Kilmer didn't timely
consent, a procedural defect exists. See Russell
Corp., 264 F.3d at 1044; see also Rodgers, 2008
WL 1133481, at *4-7. And Mr. Kilmer's eventual consent is
too little too late because it doesn't cure the defect.
See Rodgers, 2008 WL 1133481, at *7 (noting
“the fact that [a defendant] ultimately filed the
required consents is not sufficient to cure the procedural
recognizing the untimeliness of Mr. Kilmer's
“Consent to Removal, ” the consenting Defendants
argue he timely consented based on his conduct before the
thirty-day window closed. (See Doc. 47, pp. 4-6;
see also Doc. 50, pp. 4-5; Doc. 51; Doc. 52, p. 4.)
They claim Mr. Kilmer consented by acknowledging and
assenting to this Court's jurisdiction through, for
example, moving to seal and moving to dismiss. (See,
e.g., Doc. 47, pp. 4-6.) But not every action in this
Court constitutes consent to removal. Instead, “each
defendant must join in the removal by signing the notice of
removal or by explicitly stating for itself its
consent on the record, either orally or in writing.”
Gay, 2007 WL 676219, at *2 (emphasis added). Consent
must be clear and unambiguous. See Hill Dermaceuticals,
Inc. v. RX Sols., United Health Grp., Inc., No.
6:08-cv-330-Orl-31KRS, 2008 WL 1744794, at *4 (M.D. Fla. Apr.
11, 2008) (citation omitted). Mr. Kilmer's litigation
conduct doesn't qualify a s his filings are silent on con
sent to removal. (See Docs. 11, 12, 20, 33, 34);
see also, e.g., Diebel v. S.B. Trucking
Co., 262 F.Supp.2d 1319, 1329 (M.D. Fla. 2003)
(answering doesn't constitute sufficient consent);
Zarr v. Luce, No. 8:13-cv-1441-T-30AEP, 2013 WL
3581909, at *3 (M.D. Fla. July 11, 2013) (stating that