Nicole Ortiz v. Atlas Credit Company, Inc. , 431 F. App'x 306 ( 2011 )

Case: 10-41252 Document: 00511523368 Page: 1 Date Filed: 06/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 28, 2011
No. 10-41252
Summary Calendar Lyle W. Cayce
Clerk
NICOLE ORTIZ,
Plaintiff - Appellee
v.
THOMAS A. YOUNG; ATLAS CREDIT COMPANY, INCORPORATED,
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
No. 7:10–cv–00334
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Thomas A. Young (“Young”) and Atlas Credit
Company, Inc. (“Atlas”) (collectively “Appellants”) bring this appeal following the
district court’s grant of Plaintiff-Appellee Nicole Ortiz’s (“Ortiz”) motion to
remand. AFFIRMED.
I.
On June 17, 2010, Ortiz filed suit in the 206th Judicial District Court of
Hidalgo County, Texas. Her suit against Atlas alleged violations under Title VII
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 10-41252
of the Civil Rights Act of 1964. Against Young, Ortiz asserted claims against
Young, Atlas’s owner, for assault and intentional infliction of emotional distress.
Ortiz served both with citation on July 23, 2010. On August 16, 2010, pursuant
to 28 U.S.C. § 1441(b), Atlas filed its application for removal to the Southern
District of Texas. Atlas’s application made no mention of Young. On September
14, 2010, Ortiz filed a motion to remand arguing that removal was defective
because not all defendants had consented to removal within thirty days. On
September 20, 2010, Young consented to removal. On November 3, 2010, the
district court granted Ortiz’s motion for remand. This appeal followed.
II.
A.
We review de novo a district court’s determination of the propriety of
removal. Webb v. Investacorp, Inc. 88 F.3d 252, 255 (5th Cir. 1996).
B.
28 U.S.C. §1446 (a) requires that all defendants join in a petition for
removal. Tri-Cities Newspapers, Inc. v. Tri-Cities Pressmen & Assistants’ Local
349, 427 F.2d 325, 326–27. This requires that all served defendants join in the
removal petition prior to the expiration of the removal period. Gillis v.
Louisiana, 294 F.3d 755, 759 (5th Cir. 2002). Section 1446(b) explains that the
“notice of removal of a civil action or proceeding shall be filed within thirty days”
after service of the citation. 28 U.S.C. § 1446(b). In Doe v. Kerwood, 969 F.2d
165 (5th Cir. 1992), we held that when a civil action has multiple defendants, as
is the case here, then all defendants must act collectively to remove that case.
Id. at 167. This requirement has been named the “unanimity of consent rule.”
Id.
C.
Here, Atlas timely filed an application to remove the matter. 28 U.S.C.
§ 1446(b). Young did not. Thus, removal was defective and remand appropriate.
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No. 10-41252
Kerwood, 969 F.2d 169. Young appeals to the district court’s equitable powers
to excuse his tardy application for removal. This court has held that sometimes
exceptional or unique circumstances might permit removal after the expiration
of the thirty day period prescribed by § 1446(b). Brown v. Demco, 792 F.2d 478,
482 (5th Cir. 1986); Getty Oil Co. v. Ins. Co. of N. Am., 841 F.2d 1254, 1263 (5th
Cir. 1988); Gillis, 294 F.3d at 759. Yet, as Ortiz correctly indicates, those
instances where this court has exercised its equitable powers to permit a party
to consent to removal outside of the statutorily prescribed time frame often
concern plaintiff conduct, and not untimely consent to removal by a defendant.
For example, in Brown, we stated that “[e]xceptional circumstances might
permit removal” when confronting bad faith efforts to prevent removal. 792 F.2d
at 482. Meanwhile, Kerwood permits removal outside of the window in order to
prevent injustice. Kerwood, 794 F.3d at 759. Here, no such conduct by Ortiz in
her service of citation compels the court to exercise its equitable powers.
Moreover, no injustice will be obviated by the court condoning tardy consent to
removal.
As an aside, we note that in neither his opening brief nor in his reply brief
does Young address which exceptional circumstances should compel the district
court to permit him to consent to removal outside of the thirty day period
outlined in 28 U.S.C. § 1446. Instead, Young merely quibbles with the district
court’s declining to permit him to do so. Thus, because Young failed to consent
to removal as prescribed in 28 U.S.C. § 1446(b), the district court’s remand of
this matter was not in error.
III.
For the reasons stated above, the judgment of the district court is
AFFIRMED.
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