1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 1] Thomas Hauss, No. 2:23-cv-01138-KJM-JDP 12 Plaintiff, ORDER 13 Vv. 14 Home Depot U.S.A., Inc., and Kimco Realty 15 Co., 16 Defendants. 17 18 In this personal injury action, plaintiff Thomas Hauss moves to remand this case to state 19 | court. For the reasons below, the court grants the motion. 20 | I. BACKGROUND 21 On May 15, 2023, plaintiff served both defendants Kimco Realty Corporation and Home 22 | Depot U.S.A., Inc. with the summons and complaint. Kohls Decl. § 2, ECF No. 10-1; see also 23 | Notice of Removal § 4, ECF No. 1. On June 14, 2023, Kimco timely removed this action based 24 | ondiversity jurisdiction. Notice of Removal. Kimco did not address whether Home Depot 25 | consented to removal. See generally id. Seven days later, on June 21, 2023, Home Depot filed an 26 | answer. Answer, ECF No. 4. The next day, this court remanded the case after finding removal 27 | was improper because not all defendants had consented to removal. See Prior Order (June 22, 28 | 2023), ECF No. 5. That same day, Home Depot filed a notice of consent to removal, Notice, ECF

1 No. 6, and Kimco filed an amendment to its notice of removal. Am., ECF No. 7. Because the 2 court concluded it lacked the authority to “remand a case sua sponte for procedural defects,” 3 Corona-Contreras v. Gruel,

(9th Cir. 2017), the court rescinded and vacated 4 its prior order, Prior Order (June 27, 2023), ECF No. 9. 5 Plaintiff now moves to remand. Mot. Remand, ECF No. 10. Kimco opposes, Opp’n, ECF 6 No. 14, and plaintiff has replied, Reply, ECF No. 15. Home Depot has joined in the opposition. 7 See Opp’n at 10.1 8 II. DISCUSSION 9 A defendant may generally remove a case from state court to the federal district court that 10 has original subject matter jurisdiction over the case.

(a). However, jurisdiction 11 “must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. 12 Miles, Inc.,

(9th Cir. 1992). “In general, removal statutes are strictly construed 13 against removal . . . and any doubt is resolved against removability.” See Luther v. Countrywide 14 Home Loans Servicing, LP,

(9th Cir. 2008). 15 Under

(b)(2)(A), “all defendants who have been properly joined and 16 served must join in or consent to the removal of the action.” Each defendant has “30 days after 17 receipt by or service on that defendant of the initial pleading or summons . . . to file the notice of 18 removal.”

(b)(2)(B). The failure to join or obtain consent from all proper 19 defendants is a procedural defect. Emrich v. Touche Ross & Co.,

, 1193 n.1 (9th 20 Cir. 1988). A motion to remand based on a procedural defect must be made within 30 days of 21 removal,

(c); otherwise, the procedural defect can be waived by failure to make 22 timely objections, Libhart v. Santa Monica Dairy Co.,

(9th Cir. 1979). 23 Here, plaintiff timely moved to remand. See Remand. He argues, because “Kimco did 24 not attest to Home Depot’s consent” and Home Depot did not timely consent to removal, remand 25 is mandatory. Mot. at 1–2. Kimco concedes its notice of removal is procedurally defective, but 26 argues remand is not mandatory because Home Depot’s late consent can cure the defect. Opp’n

1 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system. 1 at 5. The question before the court is whether a co-defendant’s consent to removal 30 days after 2 the statutorily authorized removal timeframe can cure a procedural defect in a timely filed notice 3 of removal. It cannot. 4 Kimco first asserts “[n]on-removing defendants may express their consent to removal in a 5 variety of ways, as long as they manifest consent within the statutory period.” Opp’n at 5. For 6 example, Kimco points out Home Depot’s answer filed in this court can be construed as consent 7 to removal. Id. at 6. The court does not disagree with this proposition; however, here, the non- 8 removing defendant did not express consent within the statutory period. But Kimco goes further. 9 It also argues the procedural defect can be cured even if the non-removing defendant manifests 10 consent outside the statutory period, relying on some supporting authorities. Id. at 7. 11 Courts are split as to when a non-removing defendant’s consent must be filed for it to be 12 timely. See Palmeira v. CIT Bank, N.A., No. 17-00275,

, at *3–6 (D. Haw. 13 Oct. 24, 2017) (noting conflicting law). Citing the Ninth Circuit’s decision in Destfino v. 14 Reiswig,

(9th Cir. 2011), some courts have found the removing defendant can cure 15 violation of the rule of unanimity by obtaining joinder or consent of all defendants after the 16 removal period. See, e.g., Wang v. BB Wells Inv. Inc., No. 21-04624,

, at *3 17 (C.D. Cal. Apr. 19, 2022) (collecting cases). In Destfino, the Ninth Circuit noted “the district 18 court may allow the removing defendants to cure the defect by obtaining joinder of all defendants 19 prior to the entry of judgment.” 630 F.3d at 956–57. Others, however, have recognized Destfino 20 was decided before the 2011 amendments to the removal statute and have found defendants 21 cannot cure the procedural defect in question by obtaining consent after the 30-day removal 22 period. See, e.g., Palmeira,

, at *3, 6. “[T]he Ninth Circuit has not weighed in 23 after the 2011 amendments to § 1446.” Ray v. Dzogchen Shri Singha Found. USA, Inc., No. 23- 24 233,

, at *3 (D. Or. May 15, 2023). 25 Before the 2011 amendments to the removal statute, the rule of unanimity was a judge- 26 made rule rather than a statutory command. See Paws Up Ranch, LLC v. Altium Dev. Grp., LLC, 27 No. 14-01407,

, at *3 (D. Nev. Dec. 18, 2014). However, the 2011 28 amendments “codified the rule of unanimity.” Prior v. Safeco Ins. Co. of Am., No. 23-00021, 1

, at *2 (W.D. Wash. May 30, 2023). Thus, the court is bound by the clear 2 language of the statute. Id.; see also Taylor v. Medtronic, Inc.,

(2d Cir. 2021) 3 (“When the rule of unanimity was a judge-made rule, courts could allow judge-made exceptions 4 to that rule. But now we are limited to interpreting a clear statutory command from Congress that 5 all defendants must consent to removal within thirty days of service.”). The removal statute 6 specifically states “[e]ach defendant shall have 30 days after receipt by or service on that 7 defendant of the initial pleading or summons . . . to file the notice of removal.” 28 U.S.C. 8 § 1446(b)(2)(B). The 30-day time limit is mandatory. See Kuxhausen v. BMW Fin. Servs. NA 9 LLC,

, 1142 n.4 (9th Cir. 2013). However, there is one way a defendant may get 10 around the 30-day removal period: “if defendants are served at different times,” then an earlier- 11 served defendant may consent to a notice of removal filed by a later-served defendant, even if the 12 earlier served defendant did not timely seek removal.

(b)(2)(C). The statute 13 does not provide for any other exceptions. 14 Because the removal statute is strictly construed, and doubts regarding the court’s 15 jurisdiction are resolved in favor of remand, see Luther,

, the court joins with 16 district courts that have found the procedural defect in question cannot be cured after the 30-day 17 removal period has run, see, e.g., Lopez v. Michael Weinig, Inc., No. 20-6012,

, 18 at *4 (C.D. Cal. July 17, 2020). Here, both defendants were served at the same time. Home 19 Depot’s consent was filed after the 30-day removal period. Kimco’s purported curative 20 amendment to the notice of removal also was filed after the 30-day removal period. The court 21 finds Kimco’s notice of removal was procedurally defective and the defect was not timely cured. 22 Accordingly, the court grants the motion to remand. 23 “An order remanding the case may require payment of just costs and any actual expenses, 24 including attorney fees, incurred as a result of the removal.”

. However, 25 “absent unusual circumstances, attorney’s fees should not be awarded when the removing party 26 has an objectively reasonable basis for removal.” Martin v. Franklin Cap. Corp.,

, 27 136 (2005). Here the court finds Kimco had an objectively reasonable basis for removal based on 28 diversity jurisdiction. Moreover, the court recognizes the caselaw on timeliness of consent to 1 removal is unsettled. See Ray,

, at *3 (noting because law is unsettled, “courts 2 select various dates as the deadline for consent”). Accordingly, the court declines to award fees 3 and costs. 4 III. CONCLUSION 5 For the reasons above, the court grants plaintiff’s motion to remand. The Clerk of the 6 Court is directed to remand this case to the Superior Court for the State of California in and for 7 the County of Sacramento, and to close this case. 8 This order resolves ECF No. 10. 9 IT IS SO ORDERED. 10 DATED: August 21, 2023.