Facts
- In 2016, Jesse James sued multiple debt-collection-related companies in Louisiana state court, alleging violations of federal consumer-protection statutes, including the FDCPA and FCRA.
- Defendants included MRC Receivables Corp.; Midland Funding LLC; Midland Credit Management, Inc.; Encore Capital Group, Inc. (collectively, the “Midland defendants”); Equable Ascent Financial, LLC (Equable); and Cavalry Portfolio Services, LLC (Cavalry).
- Equable was served on March 17, 2016.
- The Midland defendants were served on March 18, 2016.
- Cavalry was never properly served.
- On April 4, 2016, the Midland defendants filed a notice of removal to federal court based on federal-question jurisdiction.
- Equable did not sign the notice of removal but later signed a written consent to removal that was filed in federal court on April 18, 2016.
- April 18, 2016 was the Monday after the respective 30-day periods following service ended on a Saturday (Equable) and a Sunday (Midland defendants).
- Cavalry did not join in removal and did not file a consent.
- James moved to remand, arguing removal was procedurally defective because not all defendants timely joined in or consented to removal under 28 U.S.C. § 1446(b).
Issues
- Whether the rule of unanimity in 28 U.S.C. § 1446(b)(2)(A) is satisfied when a served defendant files a separate written consent to removal (rather than signing the notice of removal), and whether a consent filed on the next business day after a weekend deadline is timely under Federal Rule of Civil Procedure 6(a).
- Whether removal is defective when a defendant that was never properly served does not join in or consent to removal.
Decision
- The court denied James’s motion to remand.
- The court held that Equable’s separate written consent, filed April 18, 2016, was timely because the last day of the 30-day period fell on a weekend and Rule 6(a) carried the deadline to the next business day.
- The court held that Cavalry’s consent was not required because § 1446(b)(2)(A) requires consent only from defendants who are “properly joined and served.”
Legal Principles
- Under 28 U.S.C. § 1446(b)(2)(A), removal generally requires consent from all defendants who are properly joined and served at the time of removal (the rule of unanimity).
- A served defendant may meet the unanimity requirement by filing a clear, written consent to removal; the defendant need not sign the removing defendant’s notice of removal so long as consent is timely and unambiguous.
- The 30-day period to remove or to join/consent is computed under Federal Rule of Civil Procedure 6(a); when the final day falls on a Saturday, Sunday, or legal holiday, the deadline extends to the next day that is not one of those days.
- A defendant that has not been properly served is not required to join in or consent to removal.
Conclusion
The court concluded that removal was procedurally proper because all defendants who had been properly joined and served either removed the case or timely provided written consent within the removal period as computed by Rule 6(a), and Cavalry’s failure to consent did not matter because it was never properly served.