DocketNumber： Civil No. 11-7039 (NLH-KMW)
Citation Numbers： 902 F. Supp. 2d 511, 2012 U.S. Dist. LEXIS 142632, 2012 WL 4610592
Judges： Hillman
Filed Date： 9/28/2012
Status： Precedential
Modified Date： 10/19/2024
OPINION
This matter comes before the Court: by way of Plaintiffs’ motion [Doc. No. 89] to remand this case to the Superior Court of New Jersey for Camden County pursuant to 28 U.S.C. § 1447(c). Defendants oppose Plaintiffs’ motion to remand. The Court has considered the parties’ submissions, and decides this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Plaintiffs’ motion will be granted.
I. BACKGROUND
On October 21, 2011, Plaintiffs Maria and Jose Cacoilo filed the original comí plaint in this action in the Superior Court of New Jersey for Camden County allegj
On December 2, 2011, two Defendants, Safety-Kleen Systems, Inc. (“SafetyKleen”) and the Sherwin-Williams Company (“Sherwin-Williams”) (hereinafter, collectively referred to as the “Removing Defendants”), removed Plaintiffs’ action from New Jersey Superior Court to the United States District Court for the District of New Jersey, asserting that this Court had federal question jurisdiction over the matter pursuant to 28 U.S.C. § 1331 based on federal enclave jurisdiction as set forth in Article One, Section Eight, Clause 17 of the United States Constitution. The Removing Defendants asserted that removal was proper because “[Cacoilo’s] personal injury action arises from incidents occurring in a federal enclave[.]” (Notice of Removal [Doc. No. 1] ¶ 5.) In addition to the Removing Defendants, twelve other Defendants consented to removal of Plaintiffs’ case to this Court by signing the Removing Defendants’ notice of removal.
On January 3, 2012, Plaintiffs filed the present motion to remand, asserting that removal of this action is defective under 28 U.S.C. § 1447(c) because it violates the rule of unanimity in that not all Defendants properly served at the time the notice of removal was filed on December 2, 2012 joined in, or consented to, removal. (Mem. of Law in Supp. of Pis.’ Mot. to Remand [Doc. No. 89-1] (hereinafter, “Pis.’ Mem.”), 1.) Plaintiffs also argue that the Court lacks subject matter jurisdiction because the Removing Defendants have failed to establish the existence of subject matter jurisdiction predicated on the fed
II. DISCUSSION
Generally, the removal of cases from state courts to federal courts is governed by 28 U.S.C. §§ 1441-1455. In particular, Section 1441 governs removal of civil actions and provides in pertinent part that “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). Section 1446 of the removal statute sets forth the procedures for removal explaining that a defendant or defendants desiring to remove a civil action must file a notice of removal “containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants” in the state court action “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]” 28 U.S.C. §§ 1446(a)-(b).
In cases involving multiple defendants, such as the present case, “Section 1446 has been construed to require that ... all [defendants] must join in the removal petition[.]” Lewis v. Rego Co., 757 F.2d 66, 68 (3d Cir.1985) (emphasis added); see also 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”) (emphasis added). The requirement that all defendants must join in or consent to removal is more commonly referred to as the “rule of unanimity.” Under the rule of unanimity, a failure of all defendants to join in the notice of removal creates a “defect in the removal procedure within the meaning of § 1447(c).” Balazik v. Cnty. of Dauphin, 44 F.3d 209, 213 (3d Cir.1995).
Where a procedural defect in removal exists, Section 1447(c) provides that a “motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal[.]” 28 U.S.C. § 1447(c). Because the failure of all defendants to join in, or consent to, removal is a procedural defect rather than a jurisdictional one, it functions as a procedural bar to removal which may be disregarded under only limited circumstances. See Balazik, 44 F.3d at 213 n. 4. (recognizing that the rule of unanimity may be disregarded when (1) a nonjoining defendant is unknown or is a nominal party; (2) where a defendant has been fraudulently joined; or (3) where a nonresident defendant has not been served at the time the notice of removal is filed).
Because federal courts are courts of limited jurisdiction, both the Supreme Court of the United States and the Third Circuit Court of Appeals have recognized that removal statutes are to be strictly construed against removal and all doubts must be
III. ANALYSIS
Plaintiffs argue that removal is procedurally defective in this case because the Removing Defendants failed to comply with the rule of unanimity. In support of this argument, Plaintiffs assert that prior to the filing of the Notice of Removal on December 2, 2011, “numerous Defendants were properly served with the Summons, Complaint, and First Amended Complaint.” (Pis.’ Mem. 3 — 4.) Specifically, Plaintiffs point to three Defendants who were properly served prior to the time the Notice of Removal was filed but which did not join in, or otherwise consent to, removal — Defendant Royal Adhesives and Sealants (“Royal Adhesives”), Defendant Illinois Tool Works, Inc. (“Illinois Tool”), and Defendant J-B Weld Company (“J-B Weld”).
In response, the Removing Defendants initially argue that the “Notice of Removal is not defective as all defendants have consented to removal to date.” (Removing Defs.’ Mem. of Law In Opp’n to Pis.’ Mot. to Remand [Doc. No. 144] (hereinafter, “Removing Defs.’ Opp’n”), 1.) According to the Removing Defendants, Plaintiffs’ argument that certain Defendants failed to join in, or consent to, removal despite being served prior to the filing of the Notice of Removal is now moot because “to date, no defendant in this action has opposed removal” and “those Defendants [at issue] have all now filed their own individual Notices of Consent to Removal with the Court.” (Id. at 3-4.) Therefore, the Removing Defendants argue that “removal is proper and not defective as Plaintiffs suggest.” (Id. at 4.)
The Court notes that in asserting this mootness argument, the Removing Defendants apparently concede — having failed to offer any evidence to the contrary — that Defendants Royal Adhesives,
However, the Removing Defendants appear to argue that this obvious defect in the removal procedure has been cured because, “[t]o date, each of those defendants has in fact consented to removal, thus rendering Plaintiffs’ arguments ... moot.” (Removing Defs.’ Opp’n 7-8.) Specifically, the Removing Defendants point to three separate Notices of Consent [Doc. Nos. Ill, 130, 135] filed by Defendants Illinois Tool, Royal Adhesives, and J-B Weld, respectively. Defendant Illinois Tool filed its “Notice of Consent to Removal” [Doc. No. Ill] on January 11, 2012. Defendant Royal Adhesives filed its “Notice of Joinder to Removal” on January 20, 2012, purporting to “consent[] to the removal and joint ] in the petition filed by ... Sherwin Williams Company and Safety-Kleen Systems, on or about December 2, 2011.” (Notice of Joinder to Removal [Doc. No. 130] ¶ 4.) Defendant J-B Weld also filed its “Consent to Removal” [Doc. No. 135] on January 20, 2012.
As courts in this District have repeatedly explained, unless an exception applies, “the rule of unanimity requires that all defendants ‘join in the notice of removal or give their consent within the thirty day period for the removal to be proper.’ ” Pinnacle Choice, Inc. v. Silverstein, No. 07-5857, 2008 WL 2003759, at *3 (D.N.J. May 6, 2008) (citing New York Reg’l Rail Corp. v. Bridges, No. 06-44, 2006 WL 1722631, at *3 (D.N.J. June 30, 2006)) (emphasis added); see also Hicks v. Monaco Coach Corp., No. 06-3949, 2006 WL 3780703, at *3 (D.N.J. Dec. 21, 2006) (finding a defendant’s consent submitted well beyond the 30 day period was defective because “ ‘all defendants must join in the notice of removal or otherwise consent to the removal within the thirty-day period set forth in 28 U.S.C. § 1446(b)’ ”) (citing Ogletree v. Barnes, 851 F.Supp. 184, 186-87 (E.D.Pa.1994)).
Where a defendant who has been properly served fails to join in, or consent to, removal within the prescribed thirty-day time period under Section 1446(b), not only is the Notice of Removal defective on its face, but so too is a subsequent notice of consent also filed outside the prescribed thirty-day time period. The subsequent filing of an untimely notice of consent is of absolutely no moment, does nothing to cure the defect in the removal procedure, and is properly rejected by the Court. See, e.g., Raju v. 315 Willow Avenue Condo. Ass’n, No. 07-3743, 2008 WL 314561, at *2-3 (D.N.J. Jan. 28, 2008) (granting plaintiffs’ motion to remand where the removing defendant failed to obtain the con sent of two other defendants who were properly served with the complaint prior to removal and rejecting the removing defendant’s attempt to cure the defect by submitting “Consents to Removal” from those defendants because the consents were filed beyond the thirty-day time period after service by as little as eight (8) days); Pinnacle Choice, 2008 WL 2003759, at *3 (finding that defendants’ notice of removal was procedurally deficient where at least one defendant constituted “a served defendant who did not join in the notice of removal and did not advise the Court of his desire to join in removal within thirty days.”); Bauer v. Glatzer, No. 07-4501, 2007 WL 4440213, at *2 (D.N.J. Dec. 17, 2007) (remanding action to state court and finding that defendant’s
Here, Plaintiffs have demonstrated, the Removing Defendants do not contest, and Defendant Royal Adhesives readily concedes — that these Defendants were personally served at the offices of their respective agents in New Jersey on November 4, 2011 (Defendants Royal Adhesives and J-B Weld) and November 11, 2011 (Defendant Illinois Tool). (See Affidavits of Service, Exs. A, B, D to Pis.’ Mem. [Doc. Nos. 89-5, 89-6, 89-8]); (see also Letter from Richard S. Ranieri, Esq., Counsel for Royal Adhesives, in Opp’n to Mot. to Remand [Doc. No. 143] 2.) However, Defendant Illinois Tool did not consent to, or join in, the Notice of Removal until January 11, 2012 — approximately sixty-one (61) days after being served in this action and approximately forty (40) days after the Notice of Removal was filed. Similarly, both Defendants Royal Adhesives and J-B Weld consented to removal on January 20, 2012 — approximately seventy-seven (77) days after service of the amended complaint and approximately forty-nine (49) days after the Notice of Removal was filed.
As demonstrated above, the Removing Defendants’ clearly failed to obtain the consent of Defendants Royal Adhesives, Illinois Tool, and J-B Weld prior to filing their Notice of Removal on December 2, 2011 constituting a defect in the removal procedure under Section 1447(c). Moreover, this defect cannot be cured by the subsequent Notices of Consent filed by these Defendants because these Notices were significantly untimely, having been filed between sixty-one (61) and seventy-seven (77) days after these Defendants were served — periods of time more than double that permitted under Section 1446(b)’s thirty-day time limit for removal. The failure of these Defendants to timely join in the Removing Defendants’ notice violates “a strictly applied rule of procedure that may not be extended by the court.” Rosebud Holding, L.L.C. v. Burks, 995 F.Supp. 465, 467 (D.N.J.1998); see also Galvanek v. AT & T, Inc., No. 07-2759, 2007 WL 3256701, at *2 (D.N.J. Nov. 5, 2007) (“Section 1446 provides a thirty day limitations period for removal, ... and it is well-established that the thirty day period ... is mandatory and cannot be extended by the court.”); Cf. Peter Holding Co. v. Le Roy Foods, Inc., 107 F.Supp. 56, 57-58 (D.N.J.1952) (“Where the right of removal has been lost by failure to file a petition within the statutory period, it cannot be restored by order of the court or by stipulation of the parties. The statutory period is an inflexible rule of law determining the time within which an application to remove must be made, and the court has no discretionary power to enlarge this period.”)
Accordingly, the Removing Defendants’ argument that any procedural deficiency has been cured and that removal is now proper and not defective is without merit and similar arguments have been rejected by multiple courts in this District. As the removing parties, it was incumbent upon the Removing Defendants to demonstrate the propriety of removal in this case. Bearing in mind that removal statutes must be strictly construed in favor of Plaintiffs, the non-removing parties, and that all doubts must be resolved in favor of remand, the Court finds that the Removing Defendants have failed to meet their burden in opposing this motion to remand. The Removing Defendants are unable to contest the plainly obvious fact that at least three Defendants properly
In addition to their argument that any procedural defect has been cured, the Removing Defendants alternatively argue that the motion to remand should be denied, even in the face of an obvious procedural defect, because the Removing Defendants “exercised reasonable diligence in obtaining consent from all co-defendants who they knew or should have known had been served prior to filing [the] Notice of Removal since no proofs of service [were] on file with the Court.” (Removing Defs.’ Opp’n 1.) According to the Removing Defendants, “no proof of service was on file with the [state] court for any of the defendants in this case prior to Safety-Kleen’s deadline for removal” and “[w]ithout notices on file, it [was] extremely onerous and burdensome ... [to require] consent ... be obtained from every single one of the fifty-eight defendants in this case.” (Id. at 7.)
The Removing Defendants urge this Court to excuse them failure to obtain consent from these Defendants prior to filing the Notice of Removal on December 2, 2011 on the basis that the Removing Defendants did not actually know that these Defendants had been served at that time. The Removing Defendants argue that they exercised due diligence in attempting to determine whether these Defendants had been served because the Removing Defendants repeatedly checked the state court docket for proofs of service, called the state court clerk’s office on multiple occasions, and even attempted to contact each of these Defendants prior to filing the Notice of Removal.
In making this argument, the Removing Defendants primarily rely on Laurie v. Nat’l R.R. Passenger Corp., No. 01-6145, 2001 WL 34377958, at *1 (E.D.Pa. Mar. 13, 2001), an opinion from the Eastern District of Pennsylvania.
As the cases cited supra demonstrate, see Raju, Pinnacle Choice, and Bauer, not only do the courts in this District not excuse the failure to obtain consent from all defendants who have been served prior to removal based on the exercise of reasonable diligence, at least one court in this District has expressly rejected adoption of the reasonable diligence standard. In Hicks, 2006 WL 3780703, at *3, the removing defendant failed to obtain the consent of another defendant who had been served prior to removal. The removing defendant argued, as the Removing Defendants here do, that this failure was not fatal to removal because a removing defendant “ ‘is required to obtain consent only from those co-defendants who it knew or should have known, in the exercise of reasonable diligence had been served’ and that it exercised such diligence by ‘[r]epeatedly checking the docket and calling the Clerk of Court to determine status of service.’ ” Id. at *2.
Upon consideration of this argument, the Honorable Renée Marie Bumb, U.S.D.J., concluded that removal in these circumstances was defective and remand was warranted because “[r]egardless of the fact [the removing defendant] was not aware of it, [the other] Defendant ... was indeed served at the time [the removing defendant] filed its notice of removal, ... and [the removing defendant] ... conceded that fact[.]” Id. at *3. Judge Bumb further rejected the removing defendant’s attempt to shift the burden to plaintiffs to inform the removing defendant of service and cited multiple cases from the Eastern District of Pennsylvania which did the same. Id. (citing cases and recognizing Laurie as the only ease which excused a defective removal based on a defendant’s reasonable diligence.)
As explained in Hicks, several other courts in this District have expressly acknowledged that the burden on removal lies always with the removing defendant and places no obligation on the plaintiff to provide information regarding service to the removing defendant. See, e.g., County of Morris v. State Nat. Ins. Co., No. 10-6616, 2011 WL 2039057, at *4 n. 4 (D.N.J. Apr. 26, 2011) (noting that “a removing defendant has an obligation to investigate whether a co-defendant has been served with process prior to removal, and ... a plaintiff does not have an affirmative duty to provide such information.”); Aqua-Gulf Transp., Inc. v. Twin Cnty. Transp., No. 06-1952, 2006 WL 3591291, at *3 (D.N.J. Dec. 11, 2006) (highlighting that “the removal statutes place no burden on Plaintiff to come forward with information regarding service of the Summons and Complaint. ... The burden is clearly on the
As one court in this District succinctly stated, “[e]ven where ... no counsel has made an appearance on behalf of a named defendant and no proof of service has been filed with respect to that named defendant, the removing defendant nevertheless has the duty to insure that such named defendant has consented to the removal.” Aqua-Gulf Transp., 2006 WL 3591291, at *3 (D.N.J. Dec. 11, 2006). Where the removing defendant fails to obtain such consent as it is duty bound to secure under the removal statute — which must be strictly construed with doubts resolved in favor of remand — the notice of removal fails to comply with the rule of unanimity and is procedurally defective under Section 1447(c). The Court agrees with the opinion in Hicks, and others in this District strictly construing the removal statute and holding removing defendants accountable for meeting the statutory requirements.
Therefore, the Court similarly holds that the exercise of reasonable diligence in attempting to obtain consent of all codefendants prior to removal is not the controlling standard with respect to the rule of unanimity. Accordingly, the Court need not assess whether the efforts they took to obtain consent of other Defendants in this action constitutes reasonable diligence. More importantly, understanding that virtually all, if not all, Defendants in this case are represented by “sophisticated counsel who are no doubt familiar with the rules and procedures surrounding removal[,]” the Court finds that any “inadvertence or neglect [here] rests with the Defendants[,]” as the party bearing the burden to establish that removal is proper. See Brown v. Sarubbi, No. 06-1634, 2006 WL 2014227, at *3 (D.N.J. July 18, 2006).
Finally, in seeking to avoid remand, the Removing Defendants make two additional arguments. Initially, the Removing Defendants contend that Defendants Royal Adhesives, Illinois Tool, and J-B Weld are nominal parties. If the Removing Defendants can demonstrate that these parties are nominal, then the Court may excuse those Defendants from the unanimity requirement. See Balazik, 44 F.3d at 213 n. 4. “Nominal parties are generally those without a real interest in the litigation.” Bumberger v. Ins. Co. of N. Am., 952 F.2d 764, 767 (3d Cir.1991). A party is without a real interest in the litigation only where there is “no reasonable basis for predicting that [the defendant] ... will be held liable.” Michaels v. State of N.J., 955 F.Supp. 315, 320 (D.N.J.1996). In Michaels, the court was able to conclude that the City of Newark was a nominal party under this exception to the rule of unanimity because the complaint contained “no allegation that any employee ... was so involved” in the activities that formed the basis of plaintiffs claims for relief. Michaels, 955 F.Supp. at 320-21 (emphasis added).
Again recognizing the heavy burden placed on the Removing Defendants, the Removing Defendants have failed to demonstrate that these other Defendants are, in fact, nominal parties. In direct contrast to Michaels, Plaintiffs here specifically named fifty-eight Defendants which allegedly manufactured or produced the products containing benzene, exposure to which ultimately resulted in Nilton Cacoilo’s diagnosis and death. Accepting these allegations as true, this Court finds there is a reasonable basis for predicting that any of these Defendants, Royal Adhesives, Illinois Tool, or J-B Weld, could be held liable to Plaintiffs based on their alleged involvement in the manufacture of products containing benzene exposure to which purportedly caused the death of the Nilton Cacoilo. Accordingly, the nominal party exception to the rule of unanimity does not apply in these circumstances, and therefore cannot excuse the Removing Defen
Lastly, the Removing Defendants conclude by suggesting that the Court should grant them the opportunity to cure the alleged defect in the removal procedure because there should be clear guidance on how to meet the requirements in the federal removal statute, granting leave to cure the defect is in the interest of judicial economy, and the issue of consent is now moot. In answering the question of whether a removal petition can be amended to correct a procedural deficiency, courts in this District have held, “generally speaking, that a court has discretion to permit the amendment of a notice of removal after the thirty day period in the interests of justice or judicial economy.” Pinnacle Choice, 2008 WL 2003759, at *5 (citing Wal-Mart Stores, Inc. v. Elec. Ins. Co., No. 06-3132, 2007 WL 137238 (D.N.J. Jan. 18, 2007); Brown, 2006 WL 2014227; Michaels, 955 F.Supp. at 322). However, “[djespite this discretion, ... permission to amend is unlikely absent ‘extraordinary circumstances.’ ” Pinnacle Choice, 2008 WL 2003759, at *5 (citing Michaels, 955 F.Supp. at 322).
Here, the Removing Defendants arguments set forth briefly above do not sufficiently demonstrate the presence of extraordinary circumstances in this case. First, we believe that the existing statutes and interpreting case law already provide clear guidance on the procedural requirements for removal in a case of this kind. Second, while we have not doubt that with this many Defendants discerning which ones had been served and obtaining their individual consent — all while watching the clock and without the assistant of Plaintiffs — would have been a time-consuming, perhaps costly, and challenging task. That alone is not enough to make this an extraordinary case. Moreover, it raises the question as to whether this Court or any court is competent to decide how many defendants it takes to make the task so extraordinary as to tip the scales in favor of relaxing the procedural requirements. We believe that if such a line should be drawn, it should be drawn by Congress which has the power to set the limits of lower federal court jurisdiction.
Additionally, the Court explicitly rejects the argument that it is in the interests of justice and judicial economy to allow an amendment at this time. In support of this claim, Removing Defendants point out that there are “over 140 separate pleadings on file” and as such, it is in the interest of judicial economy to allow for an opportunity to cure. In making such a characterization, however, the Removing Defendants overstate their case. Although the docket reflects over 280 entries in this case, the Court notes that (1)
As a final matter, the Court notes that Plaintiffs have requested an award of costs and fees be assessed against the Removing Defendants. Pursuant to 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” Although the Court has “broad discretion” in determining whether to award fees, Mints v. Educ. Testing Service, 99 F.3d 1253, 1260 (3d Cir.1996), such an award is only proper if “the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). However, “a procedural mistake will rarely warrant an award of costs.” Pinnacle Choice, 2008 WL 2003759, at *8 (citing Bauer, 2007 WL 4440213, at *3) (“The basis for Defendant’s] ... removal to the Court is not rendered unreasonable simply because Defendant ... did not comply with the procedural requirements of 28 U.S.C. § 1446(b).”). Here, the Court finds that the Removing Defendants’ mistake was procedural in nature and reasonable under the circumstances of a case involving this many defendants. While we ultimately fault the Removing Defendants procedurally, we do not consider the error objectively unreasonable. Accordingly, an award of fees and costs is not warranted under these circumstances.
IY. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion [Doc. No. 89] is granted and this case shall be remanded to the Superior Court of New Jersey for Camden County. An Order consistent with this Opinion will be entered.
. Nilton Cacoilo was diagnosed with Acute Myelogenous Leukemia (AML) on approximately November 4, 2009, and subsequently passed away on March 11, 2010.
. Nilton Cacoilo worked at the following locations during the relevant time period: Paris Island, South Carolina from September 2003 to December 2003; Camp Geiger, North Carolina in January 2004; "A School'' in Pensacola, Florida from March 2004 to September 2004; “C School” in Cherry Point, North Carolina from October 2004 to February 2005; Camp Pendleton, California from August 2004 to September 2004, except during deployments to AlTaqqadum, Iraq; and AlTaqqadum, Iraq from February 2005 to September 2005 and from August 2006 to March 2007.
. The twelve additional Defendants who joined in and consented to removal included: (1) Advanced Chemistry and Technology, Inc.; (2) LHB Industries, Inc.; (3) Seymour of Sycamore; (4) Pacific West Chemical Corp.; (5) Chevron U.S.A. Inc.; (6) Niles Chemical Paint Co.; (7) Valero Marketing and Supply Co.; (8) Akzo Nobel Inc.; (9) Akzo Nobel Coatings, Inc.; (10) Akzo Nobel Paints, LLC; (11) International Paint, LLC; and (12) Cytec Industries, Inc.
. Because the Court agrees with Plaintiffs that removal was procedurally defective in this case and that the case must be remanded to the Superior Court of New Jersey for Camden County, the Court need not address the merits of Plaintiffs’ alternative argument regarding the existence of federal enclave jurisdiction in this matter. Cf. Raju v. 315 Willow Avenue Condo. Ass’n, No. 07-3743, 2008 WL 314561, at *3 (D.N.J. Jan. 28, 2008) (declining "to address the substantive arguments on federal question jurisdiction” because the court found "remand to be warranted under the procedural prong of the removal analysis[.]”)
. Plaintiffs also challenge whether Defendant Cytec Industries, Inc. properly joined in or consented to removal by having its counsel sign the Notice of Removal on December 2, 2011 even though counsel did not enter an appearance on behalf of Cytec until December 20, 2011. The Court need not resolve this issue because the existence of a procedural defect with respect to the consent of Defendants Royal Adhesives, Illinois Tool, and J-B Weld sufficiently supports remand of this case.
. In fact, Defendant Royal Adhesives expressly acknowledges that “[sjervice on Royal Adhesives was effectuated through CT Corporation, as the registered agent for service of process in New Jersey on November 4, 2011.” (Letter from Richard S. Ranieri, Esq. in Opp'n to Mot. to Remand [Doc. No. 143] 2.)
. The Removing Defendants also cite Driscoll v. Burlington-Bristol Bridge Co., 82 F.Supp. 975, 984 (D.N.J.1949) and contend that Driscoll is "the paramount case in the District of New Jersey concerning the issue of unanimity of consent prior to removal, as it is the only published District of New Jersey case directly on point.” (Removing Defs.’ Opp’n 5.) The Removing Defendants rely on Driscoll for the proposition that removing defendants who have "no information from the official [court] record that other defendants ha[ve] been served on [the date they file[ ] their Notice of Removal] ... [are] justified in disregarding the other defendants in filing their petition for removal.” (Id. at 6) (citing Driscoll, 82 F.Supp. at 985).
Initially, the Court disagrees with the Removing Defendants' assertion that Driscoll is "the paramount case” in this District concerning unanimity of consent. The Court's research reveals that no other court in this District has ever cited Driscoll for the proposition offered by the Removing Defendants, let alone followed Driscoll in excusing a failure to obtain unanimous consent for removal.
Moreover, the Court is not bound by the decision in Driscoll and is unpersuaded by its reasoning because the decision fails to account for the significant advances in technology since 1949, over sixty years ago, which have made it substantially easier in this day and age for a removing defendant to determine whether a codefendant has been served in order to comply with the rule of unanimity upon removal. Compare Driscoll, 82 F.Supp. at 984-85 (D.N.J.1949) with Greco v. Yellow-Pages.com, LLC, No. 3:09-CV1502, 2009 WL 3571897, at *1 (M.D.Pa. Oct. 26, 2009) (recognizing that in 2009 "[i]t would require very little effort to attempt to contact” a defendant clearly identified by a pleading prior
. The Removing Defendants do not attempt to argue the applicability of any other exceptions to the rule of unanimity as set forth in Balazik, and therefore, the Court does not separately address these exceptions.
. For example, Congress recently amended Section 1446(b). The prior version of the statute stated that removal had to be effectuated "within thirty days after the service of summons upon the defendant.” Newly revised Section 1446(b) resolves a previous split among the Circuit Courts of Appeals. Prior to this amendment, in cases involving multiple defendants served at different times, some Circuits held that a removal notice must be filed within thirty days of the time that the first defendant was served. However, other Circuits permitted all defendants, including the later-served defendants, the full thirty days to remove a case to federal court. Resolving this split, Congress amended Section 1446(b) and adopted the more lenient view, allowing each defendant a full thirty days following service on that defendant to file a removal notice. See 28 U.S.C. § 1446(b)(2)(A) (presently providing that "[e]ach defendant shall have 30 days after receipt by service on that defendant ... to file the notice of removal.”)
. Federal Rule of Civil Procedure 7, defines the following as pleadings: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counter-claim designated as a counter claim; (4) an answer to a cross-claim; (5) a third party complaint; (6) an answer to a third party complaint; (7) if the court orders, a reply to an answer. Fed. R. Civ. Pro. 7(a)(1) — (7).