United States District Court, D. South Dakota, Northern Division
For South Dakota Wheat Growers Association, Plaintiff: Jack H. Hieb, Zachary W. Peterson, LEAD ATTORNEYS, Richardson, Wyly, Wise, Sauck, Hieb LLP, Aberdeen, SD; Keith A. Hanson, LEAD ATTORNEY, PRO HAC VICE, Keith A. Hanson Law Firm LLC, Hopkins, MN.
For Chief Industries, Inc., Defendant, Cross Defendant, Cross Claimant: Michael F. Shaw, LEAD ATTORNEY, Douglas Arthur Abraham, May, Adam, Gerdes & Thompson, Pierre, SD.
For Gateway Building Systems, Inc., Defendant, Cross Claimant: Douglas M. Deibert, LEAD ATTORNEY, Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, SD; Timothy R. Murphy, LEAD ATTORNEY, PRO HAC VICE, Murphy & Passaro, PA, Mendota Heights, MN.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND
CHARLES B. KORNMANN, United States District Judge.
Plaintiff filed and served a complaint in state court against defendants for negligence, breach of contract, breach of warranties, and strict liability arising out of claimed damages occurring when a storage bin at plaintiff's Mellette, South Dakota, facility ruptured, spilling corn on the ground. The bin was manufactured by Chief Industries, Inc. (" Chief" ) and was installed by Gateway Building Systems, Inc. (" Gateway" ). Plaintiff sought over $3.5 million in damages for the costs to repair the bin, damage to the com, and business interruption.
Chief filed a notice of removal pursuant to 28 U.S.C. § § 1441(b) based upon diversity of citizenship. Defendants both filed answers and cross claims. Plaintiff subsequently filed a motion to remand to state court on the basis that the removal was not timely and not joined by all defendants.
Plaintiff contends that, pursuant to 28 U.S.C. § 1446(b)(2)(A), the notice of removal is defective because Gateway did not consent in writing to the removal. Section 1446(b)(2)(A) applies only when the " civil action is removed solely under section 1441(a)," which is a removal based upon the fact that the federal district courts would have had original jurisdiction over the action. This matter was removed based upon diversity of citizenship pursuant to § 1441(b). The consent requirement is not applicable. Further,
the statute does not mandate that a written consent be filed. Chief represented in its notice of removal that Gateway consents to the removal and Gateway has not indicated otherwise. See Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062 (8th Cir. 2008) (approving consent signed by " some person with authority to act on the defendant's behalf, indicating that the defendant 'has actually consented' to the removal" ). The claims of plaintiff as to lack of consent should be rejected.
28 U.S.C. § 1446 tells us, in part:
(b) Requirements; generally.
(1) The notice of removal of a civil action or proceeding shall be filed 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, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
(2) [Setting forth rules requiring consent from co-defendants and setting for the rules for removal when service is accomplished on multiple defendants at different times.]
(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may ...