The Fourth Circuit recently weighed in on a technical question involving the process for removing a case against multiple defendants to federal court—namely, whether every defendant must actually sign the notice of removal. The Fourth Circuit concluded that “[w]e can see no policy reason why removal in a multiple-defendant case cannot be accomplished by the filing of one paper signed by at least one attorney, representing that all defendants have consented to the removal.” Mayo v. Bd. of Educ., Nos. 11-1816, 11-2037 (4th Cir. Apr. 11, 2013).

The Fourth Circuit is correct. That said, at least some courts are apparently willing to impose pointless technical requirements despite the lack of justification. The fact that there’s a circuit split on this issue is a perfect example. In the wrong court, the failure to get all defendants in a multi-defendant case to confirm their consent to removal in the correct way can open a trapdoor through which the case will fall back into state court.

In most class actions, this issue does not arise because the Class Action Fairness Act (CAFA) allows a single defendant to remove a qualifying class or mass action even without the other defendants’ consent. 28 U.S.C. § 1453(b). But CAFA isn’t always the basis for removal. Perhaps the lawsuit involves a federal question or satisfies the test for classic diversity jurisdiction, but doesn’t satisfy CAFA’s definition of a class or mass action or its $5 million amount-in-controversy requirement (or the defendant doesn’t want to have to demonstrate that at least $5 million is at stake). Or perhaps the class action falls into CAFA’s local-controversy or home-state exception. If so, the notice of removal must satisfy the requirement in 28 U.S.C. § 1446(b)(2) that “all defendants who have been properly joined and served must join in or consent to the removal of the action.” And typically that joinder or consent must be done no later than 30 days after the last-served defendant received the complaint. Id. § 1446(b)(2)(B)-(C).

Unfortunately, the removal statute doesn’t outline in detail how each defendant’s “consent” must be indicated. The Sixth and Ninth Circuits—now joined by the Fourth Circuit—agree that it’s enough for the filing defendant’s attorney to confirm in the notice of removal that all defendants consent. See Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th Cir. 2009); Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 201-02 (6th Cir. 2004). That rule makes perfect sense; Rule 11 and ethics rules make the signing attorney accountable for the truth of the representation that all defendants join in the removal.

But the Seventh Circuit some years ago adopted an apparently bright-line rule that “[a] petition for removal is deficient” unless “all served defendants * * * support the petition in writing, i.e., sign it.” Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997). And although the Fifth and Eighth Circuits don’t require every defendant to sign the notice of removal, they do call for “some timely filed written indication from each served defendant * * * that it has actually consented to” the removal. Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988); see also Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008).

It’s difficult to imagine the need for that requirement. How often is there such a severe miscommunication between defendants that the lawyer filing the notice of removal mistakenly certifies that a defendant that prefers to stay in state court consents to removal? And of that tiny fraction of cases, in how many are the defendants that prefer to remain in state court so helpless or oblivious to the filing of the notice of removal that they can’t file an objection? Given the extreme remoteness of the risk of wrongful removal, it’s hard to see why courts should adopt a prophylactic rule requiring all defendants to sign the notice of removal or to file a written consent in order for a removal to be valid.

After all, that prophylactic rule isn’t costless. Just ask a defendant that is facing a motion to remand on the ground that not every co-defendant signed the notice of removal or filed a joiner within the 30-day limit. That’s what happened in Mayo—although the defendant school board certified in its notice of removal that it had consulted with its co-defendant, a union, and obtained its consent to removal, the union hadn’t also contemporaneously filed a separate joinder in the removal. Instead, the union simply dropped a footnote confirming the school board’s representation in its first substantive filing in federal court. Thankfully, the courts in that case saw reason and denied the motion to remand. But not every court would have done so—even though there is no doubt that all defendants in fact consented to removal.

A lot of money gets wasting litigating over senseless technicalities. The amount of time and effort that has been wasted in litigating the validity of removals because of the everyone-must-sign rule that a few circuits have adopted is just more money down the drain. Congress fixed some ambiguities in the removal statutes in the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (pdf). Assuming that the Supreme Court doesn’t eventually resolve this issue, it is worth putting on the wish list for the next time Congress amends these statutes.

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