Alleyne v. Wells Fargo Bank, National Association
- Jesse Furman
- 1:21-cv-09598
- U.S. District Court · Southern District of New York
- 3
In Alleyne v. Wells Fargo, Judge Furman granted Alleyne’s remand motion because one defendant did not independently give written consent to removal.
The ruling returned Taquan Alleyne’s lawsuit against Wells Fargo Bank, N.A., and All Pro Capital Group, LLC, to New York state court because the removal did not include the required written consent from Wells Fargo.
What happened
In Alleyne v. Wells Fargo Bank, National Association, Taquan Alleyne sued Wells Fargo and All Pro Capital Group in New York state court over an alleged construction accident. All Pro moved the case to federal court, saying Wells Fargo consented, but Wells Fargo did not join the removal notice or file written confirmation.
The court held that federal law required every properly joined and served defendant to join the removal or independently provide written consent. All Pro admitted that Wells Fargo had not submitted written consent within the required thirty days. The court rejected All Pro’s argument that Wells Fargo’s alleged verbal consent through its lawyer was enough and did not address Alleyne’s other arguments for returning the case.
Judge Jesse M. Furman granted Alleyne’s motion to remand, sent the case back to the New York Supreme Court for further proceedings, and closed the federal case.
The detailed version
- Alleyne v. Wells Fargo Bank, National Association · No. 1:21-cv-09598
- Jesse Furman
- Apr. 11, 2022
Background
Taquan Alleyne brought a personal-injury lawsuit in New York state court after allegedly being injured in a construction accident. The defendants were Wells Fargo Bank, N.A., described as the mortgagee in possession of the property, and All Pro Capital Group, LLC, described as the general contractor hired to perform construction work there.
All Pro removed the case to federal court, invoking diversity jurisdiction. Its removal notice said it was acting “with the consent of” Wells Fargo, but Wells Fargo did not join the notice. Wells Fargo also had not filed written confirmation of its consent by the time of the opinion.
Issue
Alleyne moved to remand, meaning to send the case back to state court. He argued that the removal violated the rule of unanimity in 28 U.S.C. § 1446(b)(2)(A), which generally requires all properly joined and served defendants to join in or consent to removal.
Court’s analysis
The court relied on Second Circuit precedent holding that a defendant that does not join the removal notice must independently express its consent. District courts in the Second Circuit had required each defendant to submit written consent that unambiguously agrees to removal, including when the removing defendant represents that the other defendant consented.
All Pro conceded that Wells Fargo had not submitted written consent within thirty days, as required by 28 U.S.C. § 1446(b)(2)(B). All Pro argued that Wells Fargo’s verbal consent through counsel was sufficient, citing decisions from other federal appellate courts. The court declined to follow those nonbinding decisions because they conflicted with the authority in the Second Circuit. The court also noted that All Pro had not argued that any exception to the rule of unanimity applied. Because the court resolved the remand motion on this ground, it did not reach Alleyne’s other arguments that removal was untimely and that additional necessary parties would defeat diversity jurisdiction.
Disposition
The court held that the removal did not satisfy the required consent procedures. It granted Alleyne’s motion to remand, directed the Clerk of Court to remand the case to the Supreme Court of New York for further proceedings, terminated the motion, and closed the federal case.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.