IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

BEN F. BEARD, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civil Action No. 2:06-CV-653-WHA 

 ) 

LEHMAN BROTHERS HOLDINGS, INC., ) 

d/b/a LEHMAN CAPITAL, et al., ) 

 ) 

 Defendants. ) 

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF MOTION TO REMAND

 Plaintiff Ben F. Beard hereby submits this Reply Brief in Support of his Motion to Remand 

this case to State Court as follows: 

A. The Jolly Roger Defendants failed to properly consent to removal within the thirty 

 day deadline established by 28 U.S.C. § 1446(a). 

 The dispute in this case is whether the Jolly Roger Defendants1 timely consented to the 

removal of this action. As an initial matter, all Defendants contend that counsel for the Jolly Roger 

Defendants consented to the removal of this action and authorized counsel for the Lehman Brothers 

Defendants2 to execute the Notice of Removal on behalf of the Jolly Roger Defendants. However, 

even if counsel for the Lehman Brothers Defendants had signed the Notice of Removal on behalf of 

the Jolly Roger Defendants, such action would have been ineffective to comply with 28 U.S.C. § 

1446(a), which requires the notice of removal to comply with the requirements of Rule 11 of the 

 

1 Defendants Jolly Roger I, Inc., Capital Seven Recovery LLC, Peter Fahey and Larry Carlson 

will be referred to herein collectively as the “Jolly Roger Defendants”. 

2 Defendants Lehman Brothers Holdings, Inc. d/b/a Lehman Capital, Peter R. Kern, Oak Asset 

Management, LLC and Midland Loan Services, Inc. will be referred to herein collectively as the 

“Lehman Brothers Defendants”). 

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Federal Rules of Civil Procedure. See 28 U.S.C. § 1446(a) (“[a] defendant or defendants desiring to 

remove any civil action ... shall file in the district court of the United States for the district and 

division within which such action is pending a notice of removal signed pursuant to Rule 11....”3 

Rule 11 prohibts an attorney for one party from signing a pleading on behalf of a separately 

represented party, and therefore, had Lehman’s counsel signed the notice of removal for the Jolly 

Roger Defendants, the notice would have been defective because it would not have complied with 

Rule 11. See Smith v. Union Nat. Life Ins. Co. 187 F.Supp.2d 635, 642 (S.D. Miss. 2001) 

(remanding case and recognizing that because Rule 11 “does not authorize one party to make 

representations or file pleadings on behalf of another”, counsel for one defendant could not sign the 

notice of removal expressing consent to removal on behalf of another defendant). 

 In this case, however, the Notice of Removal was not “signed by counsel for Lehman 

Brothers.”4 Instead, the Notice of Removal was executed on behalf of the Jolly Roger Defendants 

by a non-attorney “assistant” to counsel for Lehman Brothers. According to the affidavit filed by 

attorney Michael E. Jones in support of the Defendants’ Opposition to Remand, his “assistant Leesa 

Flemming” signed the Notice of Removal on behalf of the Jolly Roger Defendants. [ECF Doc. No. 

18-1, ¶ 7] (emphasis added). It is therefore undisputed that a non-lawyer signed the Notice of 

Removal on behalf of several defendants, including defendant corporations Jolly Roger I, Inc. and 

Capital Seven Recovery LLC. 

 

3 Courts have uniformly interpreted the removal statutes to impose a rule of unanimity in 

multi-defendant cases, therefore requiring all defendants to consent to removal. Russell Corp. v. 

American Home Assur. Co., 264 F.3d 1040, 1044 (11th Cir.2001). 

4 Contrary to the admission in Michael Jones’ affidavit that his “assistant” signed the Notice of 

Removal for the Jolly Roger Defendants, the Jolly Roger Defendants nonetheless maintain in their 

Opposition to Remand that “Lehman’s counsel signed the Notice of Removal on behalf of the Jolly 

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 All Defendants acknowledge this Court’s ruling in Newman v. Spectrum Stores, Inc., 109 

F.Supp.2d 1342, 1346 (M.D. Ala. 2000), and in fact both sets of Defendants quote the following 

holding from Newman as controlling the outcome of this case: “[t]here must be some timely filed 

written indication from each served Defendant, or from some person or entity purporting to formally 

act on its behalf in this respect and to have authority to do so, that it has actually consented to such 

action.” [ECF Doc. No. 17, p. 6; ECF Doc. No. 20, p. 11] (emphasis added). Alabama and Federal 

law both recognize that a corporation, such as Defendants Jolly Roger I, Inc. and Capital Seven 

Recovery LLC, can appear in court only through an attorney. See A-OK Constr. Co. v. Castle 

Constr. Co., 594 So.2d 53, 54 (Ala.1992); Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 

1985) (recognizing that "a corporation is an artificial entity that can act only through agents, cannot 

appear pro se, and must be represented by counsel.). Therefore, under the test set forth in Newman 

and relied on by Defendants in their Opposition to Remand, not all defendants timely filed a consent 

executed by someone with legal authority to do so. The corrected Notice of Removal, properly 

executed by counsel for the Jolly Roger Defendants, was not filed until August 8, 2006, forty-seven

days after service of Plaintiff’s Complaint upon the first served Defendant. 

 The Defendants attempt to remedy this removal defect by submitting affidavits, along with 

emails and draft signature pages exchanged between counsel for the Defendants, to reflect that the 

Jolly Roger Defendants had in fact consented to the removal and had authorized counsel for Lehman 

Brothers to execute the Notice of Removal on their behalf.5

 As discussed above, because the 

 

Roger Defendants....” [ECF Doc. 20, p. 11] (emphasis added). 

5 Defendants also argue that the filing of an answer in federal court by the Jolly Roger 

Defendants within the thirty day removal window satisfies the consent requirement. Courts have 

repeatedly rejected this argument especially where, as here, the Answer does not contain an 

expression of consent to the removal by the defendants. Whetstone v. Fred’s Stores of Tennessee, 

Inc., 2006 WL 559596 *3 (M.D. Ala. March 7, 2006) (attached hereto as Exhibit 1); Local Union 

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assistant to Lehman Brothers’ counsel, Ms. Flemming, is not an attorney, she cannot execute court 

pleadings on behalf of Defendants Jolly Roger I, Inc. and Capital Seven Recovery, LLC, even if 

those defendants otherwise “authorized” her to do so. Secondly, and most importantly, no evidence 

of consent by the Jolly Roger Defendants was filed with the Court within the thirty day deadline 

imposed by 28 U.S.C. § 1446(b). None of the affidavits, email messages or draft signature pages 

relied on by the Defendants to show consent were ever shared with the Court within the required 

thirty days. See Newman, 109 F.Supp.2d at 1345 (recognizing that “[u]nanimity among the 

defendants must be expressed to the court ‘within thirty days....’”)(emphasis added); Lampkin v. 

Media General, Inc., 302 F.Supp.2d 1293 (M.D. Ala. 2004) (“§ 1446 is to be construed strictly, and 

therefore there is no such thing as ‘implied joinder or consent’”). Courts have routinely failed to 

construe such evidence as constituting consent when it was not filed with the Court within the 

required thirty days. See e.g. Smith v. Union Nat. Life Ins. Co. 187 F.Supp.2d 635, 644 

(S.D.Miss.2001) (“having failed to communicate its joinder or consent to the Court during the 30-

day period, [defendant] cannot now show the Court that it authorized its attorney to file a joinder on 

its behalf.”); Baker v. Ford Motor Company, 1997 WL 88260 (N.D.Miss.1997)(“each served 

defendant must timely express consent to the court, as opposed to the removing defendant”) 

(attached hereto as Exhibit 2); Local Union No. 172 v. P.J. Dick, Inc., 253 F.Supp.2d 1022 (S.D. 

Ohio 2003) (remanding case for lack of timely consent despite affidavits submitted by counsel for 

defendants reflecting that all defendants had consented to removal within thirty days). Failure of the 

Jolly Roger Defendants to timely file with the Court consent to the removal is fatal and requires 

 

No. 172 v. P.J. Dick, Inc., 253 F.Supp.2d 1022 (S.D. Ohio 2003); Production Stamping Corp. v. 

Maryland Casualty Co., 829 F.Supp. 1074 (E.D.Wis.1993); Landman v. Borough of Bristol, 896 

F.Supp. 406, 409 (E.D.Pa. 1995). The Jolly Roger Defendants obviously had time to file an Answer 

in this case within the thirty day window and they should have also complied with their obligation to 

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remand of this action. Newman v. Spectrum Stores, Inc., 109 F.Supp.2d 1342 (M.D. Ala. 2000); 

Whetstone v. Fred’s Stores of Tennessee, Inc., 2006 WL 559596 (M.D. Ala. March 7, 2006); 

Lampkin v. Media General, Inc., 302 F.Supp.2d 1293 (M.D. Ala. 2004). 

B. Plaintiff moved to remand within the required 30 days and therefore did not waive 

 the Defendants’ defective removal. 

 In a final attempt to remain in their preferred forum, Defendants argue that Plaintiff has 

implicitly waived6

 their defective removal by filing pleadings in federal court, including a stipulation 

for an extension of time which was requested by Defendant Lehman Brothers. Pursuant to 28 U.S.C. 

§ 1447(c), a Plaintiff seeking to remand a case based upon a procedural defect may implicitly waive 

such defect, but such waiver is defined by the statute as a failure to raise the defect within thirty 

days.7

 See Gordon v. Acrocrete, Inc., 400 F.Supp.2d 1310, 1312 n.5 (S.D.Ala. 2005)(recognizing 

that the failure of all defendants to properly consent to removal was a procedural defect which could 

be waived if not raised within thirty days.). Here, Plaintiff moved to remand based on Defendants’ 

defective removal within the thirty day deadline imposed by § 1447(c) and therefore, cannot be held 

to have waived the defect. 

C. Conclusion

 Because the removal statutes are strictly construed against removal, all doubts about removal 

must be resolved in favor of remand. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). 

 

file a consent to the removal. Failure on their part to do so is fatal to the attempted removal. 

6 Defendants do not contend that Plaintiff has expressly waived the defect by, for example, 

agreeing to not contest removal on the grounds that not all Defendants timely consented to removal. 

 

7 The thirty day limitation imposed by § 1447(c) was instituted in 1988, after both cases relied 

on by Defendants for their waiver argument were decided. See Intercoastal Ref. Co. v. Jalil, 487 

F.Supp. 606, 607-608 (S.D. Tex. 1980); Lanier v. Am. Bd of Endodontics, 843 F.2d 901, 905 (6th Cir. 

1988) (although this opinion was released in 1988, the facts constituting the waiver occurred in 

1984). The Defendants cite to no case decided under the current version of § 1447(c) finding a 

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 Due to the failure of the Jolly Roger Defendants to timely consent to removal, a defect raised by 

Plaintiff within the thirty day deadline imposed by 28 U.S.C. § 1447(c), this action is due to be 

remanded to state court. 

 

 s/ J. David Martin 

 Richard H. Gill (GIL007) 

 J. David Martin (MAR190) 

Copeland, Franco, Screws & Gill, P.A. 

444 South Perry Street (36104) 

Post Office Box 347 

Montgomery, Alabama 36101-0347 

Telephone: (334) 834-1180 

Facsimile: (334) 834-3172 

Email: gill@copelandfranco.com

Email: martin@copelandfranco.com

Lee R. Benton 

C. Steven Ball 

BENTON & CENTENO, LLP 

2019 Third Avenue North 

Birmingham, AL 35203 

Tel: (205) 278-8000 

Fax: (205) 278-8008 

 Counsel for Plaintiff Ben F. Beard 

 

waiver by a Plaintiff who otherwise sought remand within the thirty day window. 

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CERTIFICATE OF SERVICE

 I hereby certify that on August 29, 2006, I electronically filed the foregoing with the Clerk of 

the Court using the CM/ECF system which will send notification of such filing to the following: 

• David B. Anderson

david.anderson@wallerlaw.com linda.callahan@wallerlaw.com 

• Charles Steven Ball

sball@bcattys.com dratliff@bcattys.com 

• Lee R. Benton

lbenton@bcattys.com pnissen@bcattys.com 

• Terry Lucas Butts

tlucasbutts@yahoo.com 

• Ryan K. Cochran

ryan.cochran@wallerlaw.com suzanne.wallace@wallerlaw.com 

• Michael Eugene Jones

jonessport@troycable.net mjones@troycable.net 

• Deanna L. Weidner

deanna.weidner@wallerlaw.com suzanne.wallace@wallerlaw.com 

 s/ J. David Martin 

 Of Counsel 

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