United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. Chambers, United States District Judge.
before the Court is Plaintiffs' Amended Motion to Remand.
ECF No. 9. For the forgoing reasons, the Court
GRANTS Plaintiff's motion. Furthermore,
the Court REMANDS this case to the Circuit
Court in Putnam County, West Virginia.
Frank and Felicia McClung filed the initial complaint against
Defendants, ECP Inc. (“ECP”) and A-One Dealer
Supply, Inc. (“A-One”), in the Circuit Court of
Putnam County, West Virginia on June 27, 2018. Docket
Sheet, ECF No. 1-3. Both Defendants accepted service of
process on October 18, 2018. Id. ECP removed this
case to federal court on November 16, 2018, claiming the
Court has diversity jurisdiction. Notice of Removal,
p. 2, ECF No. 1. ECP did not allege that Defendant A-One
consented to removal, nor was A-One's counsel included on
the certificate of service. Id. Plaintiff responded
by filing the present Motion to Remand. Am. Mot.
Remand, ECF No. 9.
action may be removed from state court to federal court if it
is one over which the district court would have had original
jurisdiction. 28 U.S.C. § 1441(a). Federal district
courts have original jurisdiction over all civil actions
between citizens of different states, where the amount in
controversy exceeds $75, 000. 28 U.S.C. §
1446 of United States Code provides the procedure by which a
defendant may remove a case to a district court. The party
filing a notice of removal carries the burden of alleging and
demonstrating the court's jurisdiction over the matter.
Strawn et al. v. AT &T Mobility, LLC et al., 530
F.3d 293, 296 (4th Cir. 2008). Jurisdiction must be
established by a preponderance of the evidence. See White
v. Chase Bank USA, NA., Civil Action No. 2:08-1370, 2009
WL 2762060, at *1 (S.D. W.Va. Aug. 26, 2009) (internal
citations omitted). In the interest of state sovereignty, a
court must “resolve all doubts about the propriety of
removal in favor of retained state jurisdiction.”
Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th
general, all defendants must join in the notice of
removal.” Lloyd v. Cabell Huntington Hosp.,
Inc., 58 F.Supp.2d 694, 697 (S.D. W.Va. 1999).
“This so-called ‘rule of unanimity' does not
require all defendants to sign a single joint notice of
removal, but it does require each ‘to register to the
Court its official and unambiguous consent to a removal
petition filed by a co-defendant within the thirty day window
afforded by 28 U.S.C. § 1446(b).'”
Id. (citing Stonewall Jackson Memorial Hosp. v.
American United Life Ins. Co., 963 F.Supp. 553
(N.D.W.Va.1997) (internal citations omitted)); see also
Wilkins v. Correctional Medical Sys., 931 F.2d 888, 1991
WL 68791 at *2 n. 2 (4th Cir. May 3, 1991) (unpublished)
(“[T]here is no federal jurisdiction when one of the
defendants fails to join in, file his own, or officially and
unambiguously consent to, a removal petition within 30 days
remove this case to federal court, all defendants needed to
consent to removal within thirty days of their service on
October 18, 2018. Though ECP filed removal within that time
period, it failed to indicate that its co-defendant, A-One,
consented to removal. While defendants do not need to consent
in a single filing, A-One was then required to independently
join within the same, initial thirty-day period by filing
directly with the Court. A-One did not file anything with
this Court until December 18, 2018. ECF No. 10. When
confronted with this failure, counsel for ECP merely states
“the undersigned has spoken to counsel for A-One Dealer
Supply and has obtained their consent for removal to federal
court.” Resp. Am. Mot. Remand, p. 3, ECF No.
11. This claim does not allege that ECP had the consent of
A-One upon filing and reads as if consent was received
subsequent to the filing of the motion to remand.
the Court finds Defendants have offered no allegation or
evidence of properly filed consent to removal and have failed
to carry the burden of proof that their removal was
sufficient and timely. As such, the Court lacks jurisdiction
and must remand this case.
reasons set forth herein, Plaintiffs Amended Motion to Remand
(ECF No. 9) is GRANTED. The Court
REMANDS the case to the Circuit Court in
Putnam County, West Virginia and ORDERS the
case to be removed from the docket.
Court DIRECTS the Clerk to send a copy of
this Order to counsel of record and any unrepresented
parties, and a certified copy to the Clerk of the ...