Pacy v. Cowen Holdings

U.S. DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Civil Practice

New York Law Journal

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Judge Richard Arcara

Removal party Alliance Laundry Holdings opposed Pacy's motion to remand a personal injury suit—on his infant child's behalf—to state court pursuant to 28 USC §1447 because not all defendants had consented to removal. It contended that consent from Becker Distributing Co. Inc., and individual defendants John and Shirley Becker—served with process more than 30 days prior to the notice of removal's filing—was not required. Noting that an amendment to 28 USC §1446(b)(2)(A) by the Federal Courts Jurisdiction and Venue Clarification Act codified the so-called "unanimity rule," district court granted Pacy remand. Brought after the act's Jan. 6, 2012, effective date, Pacy's action was subject to its terms. Under the unanimity rule as articulated by the act, all defendants that have been properly served, and are properly joined as parties, must consent to removal in a removal petition filed under 28 USC §1441(a) or otherwise file evidence of their consent to removal. Deeming the Becker defendants properly served and joined, district court found Alliance needed their explicit consent to remove Pacy's action. Because the Becker defendants did not explicit consent, removal was defective for lack of unanimity.

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