The Court of Appeals for the First Circuit held that despite the fact one defendant failed to consent to removal that this was a procedural defect which could be cured prior to the entry of a judgment. In Esposito v. Home Dept., 590 F.3d 72 (1st Cir. 2009) plaintiff was injured while operating a power saw. Two of the three defendants removed the matter to the United States District Court. The third defendant, Home Depot, merely filed an answer. Plaintiff moved to remand on the basis that Home Depot had not consented to removal within the 30-day period required by Statute. The District Court rejected that argument and concluded that Home Depot’s answer filed within the applicable 30-day period constituted consent to removal under the circumstances of the case.
The Court of Appeals pointed out that courts typically require some type of writing that evinces consent noted that some courts have held that an answer by any defendant which is silent on removal may establish consent while other courts have reached an opposite conclusion. Keeping this in mind, the Court of Appeals said:
“and in this particular case, even assuming that Home Depot’s answer failed to satisfy the unanimity requirement, resulting in a technical defect in the removal process, the defect was subsequently cured when Home Depot opposed Esposito’s remand motion, thereby clearly communicating its desire to be in Federal Court (590 F.3d at p. 77).”
The court did sound a warning and said
“Of course, it is undoubtedly the better practice for a defendant who wants to be in Federal Court to join the removal notice explicitly, either by signing the notice itself or by filing its consent. By failing to do so in this case, Home Depot ran the risk that the District Court might find a breach of the unanimity requirement and remand this action to the State Court, a decision we would have been powerless to review (590 F3d at p. 77)