Taylor v. Medtronic, Inc.

15 F.4th 148

Brandon TAYLOR, Plaintiff-Appellant,

v.MEDTRONIC, INC., Medtronic, USA, Covidien Holding Inc., Covidien, Inc., Covidien LP,¹ Defendants-Appellees.

Docket No. 20-742-cv

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: March 17, 2021

Decided: September 30, 2021

RONALD PAUL HART, New York, NY, for Plaintiff-Appellant Brandon Taylor.

LISA S. BLATT, Williams & Connolly LLP (Amy Mason Saharia, Matthew J. Greer, on the brief), Washington, D.C., for Defendants-Appellees Medtronic, Inc., Medtronic, USA, Covidien Holding Inc., Covidien, Inc., and Covidien LP.

Loren H. Brown, DLA Piper LLP (US), (on the brief), New York, NY, for Defendants-Appellees.

Before: POOLER, SULLIVAN, and PARK, Circuit Judges.

POOLER, Circuit Judge:

Brandon Taylor appeals from the February 24, 2020 judgment of the United States District Court for the Northern District of New York (Scullin, J. ) denying his motion to remand to state court and granting defendants’ motion to dismiss his complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The removal statute provides that "all defendants who have been properly joined and served must join in or consent to the removal of the action," and that the "notice of removal of a civil action or proceeding shall be filed within 30 days" of the defendant receiving the initial pleading or the summons. 28 U.S.C. § 1446(b)(1)-(2)(B). All defendants here were properly served, and therefore each was required to timely consent to effectuate removal. But one defendant, Covidien LP, failed to timely consent to removal because it mistakenly believed that it had not been properly served. The district court nevertheless found that this defect was cured when Covidien LP later joined the other defendants in opposing plaintiff's motion seeking remand, filed after the deadline for removal lapsed.

We reverse. A properly served defendant cannot cure a failure to timely consent to removal by later providing untimely consent. Accordingly, even if we assume that Covidien LP eventually consented to removal when it opposed the motion for remand, that consent, which came seventeen days after the thirty-day statutory period for removal lapsed, may not undo or fix the timeliness problem. Nor are we free to create an exception to the statute's mandatory language requiring timely consent. Because we find remand appropriate, we vacate the district court's dismissal of the complaint.

BACKGROUND

Taylor sued Medtronic, Inc., Medtronic, USA, Covidien Holding Inc., Covidien, Inc., and Covidien LP (collectively, "Medtronic") seeking damages for injuries he allegedly suffered from a defective mesh implant used during surgery to repair his inguinal hernia. Taylor's complaint alleges that Medtronic designed, manufactured, marketed, distributed, and sold the mesh to medical providers, including the one who performed Taylor's hernia surgery. Taylor brought his product liability action in New York Supreme Court, Broome County on several theories of liability: negligence, failure to warn, defective design, manufacturing defect, and breach of both express and implied warranties.

Four of the five defendants filed a timely notice of removal. The fifth defendant, Covidien LP, did not join the notice. Covidien LP is a corporate sibling of the other four defendants, and is represented by the same counsel. The removal notice stated that "Covidien LP has not been served in this action," and noted that "[c]onsent is not required for Defendants who have not yet been served." App'x at 6 n. 1. Taylor moved to remand, in part on the basis that Covidien LP had, in fact, been properly served, and without the consent of all properly served defendants, removal was improper. All defendants, including Covidien LP, opposed remand. Counsel's declaration in support of defendants’ opposition explained that its agent for service "mistakenly failed to forward the served summons and complaint because it was attached to the back of an identical summons and complaint for Covidien, Inc." App'x at 125 ¶ 7. Counsel argued that "[t]he failure to include Covidien LP in the notice of removal was a technical oversight," and thus curable by Covidien LP's joining the opposition to remand. Id. The district court agreed. See Taylor v. Medtronic, Inc. , No. 3:18-Civ. 1201 (FJS/ML) 2020 WL 886118 (N.D.N.Y. Feb. 24, 2020). The district court found that opposing the remand motion "constitute[d] consent to removal and functions to cure Defendants’ failure to comply with the rule of unanimity." Id. at *2. It therefore denied the remand motion and granted Medtronic's motion to dismiss the complaint for failure to state a claim. Id. at *3-8. This appeal followed.

DISCUSSION

"We review a district court's denial of a motion to remand de novo." O'Donnell v. AXA Equitable Life Ins. Co ., 887 F.3d 124, 128 (2d Cir. 2018). "In reviewing a denial of a motion to remand, the defendant bears the burden of demonstrating the propriety of removal." Id . (internal quotation marks omitted).

Section 1441(a) permits a defendant to remove a case from state court to federal court, so long as certain requirements are satisfied. 28 U.S.C. § 1441(a). A notice of removal must be signed by at least one attorney of record in accordance with Rule 11; contain a short and plain statement of the basis for removal; and include a copy of all process, pleadings, and orders served upon the defendants in the action. Id. § 1446(a), (b). More importantly for our case, the notice of removal "shall be filed within 30 days after the receipt by the defendant" of the initial pleading or summons, "whichever period is shorter." Id. § 1446(b)(1). And within that thirty-day window, "all defendants who have been properly joined and served must join in or consent to the removal of the action" the so-called rule of unanimity. 28 U.S.C. § 1446(b)(2)(A) ; see also 28 U.S.C. § 1446(b)(2)(B) ("Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal."). While not codified until 2011, common law long required all defendants to consent to removal. See, e.g. , Chi., Rock Island, & Pac. Ry. Co . v. Martin , 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900) (requiring all defendants join in the removal application).

"The unanimity requirement serves the interests of plaintiffs, defendants and the courts," because:

It benefits plaintiffs by preventing defendants from splitting the litigation, forcing the plaintiff to pursue the case in two separate forums. It benefits defendants by precluding one defendant from imposing its forum choice on codefendants. And it helps courts by preventing needless duplication of litigation.

16 Moore's Federal Practice – Civil § 107.42 (2018)

Because "statutory procedures for removal are to be strictly construed," we "resolv[e] any doubts against removability." In re Methyl Tertiary Butyl Ether Prods. Liab. Litig. , 488 F.3d 112, 124 (2d Cir. 2007) (internal quotation marks and citation omitted, alteration in original); see also Syngenta Crop Prot., Inc. v. Henson , 537 U.S. 28, 32, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002) ; Shamrock Oil & Gas Corp. v. Sheets , 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ("Not only does the language of the Act of 1887 evidence the Congressional purpose to restrict the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation.").

It is well-established that defendants "must independently express their consent to removal." Pietrangelo v. Alvas Corp. , 686 F.3d 62, 66 (2d Cir. 2012). The issue here is whether the removal statute allows a defendant to consent to removal after the thirty-day deadline for removal lapses. It does not. Where, as here, a properly served defendant fails to provide notice of consent to removal within the thirty-day statutory period, the defendant cannot cure that failure by providing late consent. This straightforward application of 28 U.S.C. § 1446(b)(2)(B) is consistent with our Circuit's presumption against removal. See Lupo v. Human Affairs Int'l, Inc ., 28 F.3d 269, 274 (2d Cir. 1994) ("The right to remove a state court action to federal court on diversity grounds is statutory, and must therefore be invoked in strict conformity with statutory requirements." (internal citation omitted)).²

To read the removal statute as permitting late consent would not only overlook the statute's clear language, but would also undermine the "rapid determination of the proper forum," which we have recognized as a goal of the removal procedures. Id.

Defendants nonetheless argue that "[e]very court of appeals that has considered the issue has held that a defendant that did not join the notice of removal, but that later opposes a remand motion, cures any technical defect and satisfies the ‘rule of unanimity.’ " Appellees’ Br. at 17. That argument elides the fact that, in several of the cases defendants cite, the other Circuits acted under different circumstances. For example, in Christiansen v. West Branch Community School District , the late-removing defendant "filed a motion to dismiss and submitted an accompanying brief" endorsing removal within the thirty-day statutory period. 674 F.3d 927, 933 (8th Cir. 2012) (noting that the "holding is limited to the specific facts of this case"). And in Harper v. AutoAlliance International Inc. , the defendant at issue not only timely concurred in the notice of removal that was submitted by other defendants, but also filed his own answer within thirty days of being served in which the defendant affirmatively asserted that jurisdiction and venue were proper in federal court. 392 F.3d 195, 201-02 (6th Cir. 2004). It may be that a motion to dismiss accepting removal or opposition to remand can satisfy the writing requirement if made within...