Martin v. CVS Pharmacy, Inc.

Background

Barbara Driscoll Martin and the other plaintiffs sued CVS Pharmacy, Inc. and other defendants in state court. The CVS defendants removed the case to federal court. AIN11CA was a properly served and joined defendant, but the CVS defendants did not obtain AIN11CA’s consent before removing the case.

Three weeks before removal, the plaintiffs had filed a proof of service stating that a process server served a summons on AIN11CA’s registered process agent on the same day the CVS defendants were served. The CVS defendants said they were unsure whether AIN11CA had been properly served, but the court found that they were not reasonably diligent in investigating that issue.

Court’s analysis

Under 28 U.S.C. § 1446, all properly served and joined defendants must consent to removal. A removing defendant has 30 days from service of the initial pleading to obtain the consent of nonjoining defendants. The court found that the CVS defendants’ failure to obtain AIN11CA’s consent before removal made the removal defective.

The CVS defendants argued that they later cured the defect by obtaining AIN11CA’s consent after the plaintiffs filed the motion to remand. The court rejected that argument because the consent came after the 30-day statutory period. The CVS defendants had contacted AIN11CA’s managing members using an address listed on the California Secretary of State’s website, but the court found that they had not explained why they could not have made that effort before the deadline.

Ruling

Judge Vince Chhabria granted the motion to remand. The Clerk was directed to remand the case to Santa Clara County Superior Court.