Must a Defendant Joined ~ and Served After Proper Removal of a Case Consent to Federal Jurisdiction: AN ANALYSIS OF 28 u.s.c. § 1448

Christopher M. Kelly

The law is clear that “[w]hen 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.” 28 U.S.C. § 1446(b)(2)(A).  The unusual circumstance that this article will address is when a defendant served after proper removal of a case to federal court moves to remand due to its refusal to consent to federal jurisdiction.  The issue of whether the lack of consent to federal jurisdiction by such a defendant is grounds for a motion to remand has not been definitively addressed in federal procedural law and arises out of the wording of 28 U.S.C. § 1448.  Section 1448 provides:

In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.

This section shall not deprive any defendant upon whom process is served after removal to move to remand the case.1