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Home / Opinion / 11-C-0643 Diversey v. Maxwell

11-C-0643 Diversey v. Maxwell

Civil Procedure
Removal; remand

Once a case has been properly removed, the subsequent service of additional defendants who do not specifically consent to removal does not require or permit remand on a plaintiff’s motion.

“[T]o prevent a defendant from losing the ability to remove a case before the remaining defendants are served, a defendant may remove a case without obtaining the consent of the unserved defendants. However, each unserved defendant retains the right to veto the removal by moving to remand once he is served with process and makes an appearance in the case. See 28 U.S.C. § 1448 (recognizing that ‘any defendant upon whom process is served after removal’ has the right to move to remand the case); Hutchins, 103 F. Supp. at 607. The later-served defendant’s right to veto the removal by moving to remand renders any need for the later-served defendant to join the removal superfluous: if the later-served defendant wants to be in federal court he does nothing; if he prefers a state forum he moves to remand. Davis, 2006 WL 3883322, at *3. The rule requiring all defendants to be unanimous in preferring a federal forum confers no rights on the plaintiff, and so if no later-served defendant moves to remand the case stays put.”

11-C-0643 Diversey v. Maxwell

E.D.Wis., Adelman, J.

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