IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

BEN F. BEARD, )

)

Plaintiff, )

)

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

)

LEHMAN BROTHERS HOLDINGS, INC., )

d/b/a LEHMAN CAPITAL, PETER R. )

KERN, OAK ASSET MANAGEMENT, LLC, )

MIDLAND LOAN SERVICES, INC., ) 

JOLLY ROGER, LLC; JOLLY ROGER I, INC.,)

CAPITAL SEVEN RECOVERY, LLC, )

PETER FAHEY, LARRY W. CARLSON, )

)

Defendants. )

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO REMAND

COMES NOW the Plaintiff, Ben F. Beard (“Beard”), and pursuant to 28 U.S.C. § 1447(c)

and other applicable law, submits his Memorandum of Law in Support of Motion to Remand the

subject case to the Circuit Court of Pike County, Alabama. 

UNDISPUTED FACTS

1. The Plaintiff filed his Complaint in the Circuit Court of Pike County on June 14,

2006, alleging various tort claims against the Defendants pursuant to the statutory and case law

of Alabama. Both Lehman Brothers Holdings, Inc., d/b/a Lehman Capital (“Lehman Brothers”)

and Midland Loan Services, Inc. (“Midland”), were served with the Summons and Complaint on

June 22, 2006. 

2. On July 21, 2006, a Notice of Removal was filed, pursuant to 28 U.S.C. § 1446,

allegedly by all Defendants, removing the case to the United States District Court for the Middle

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District of Alabama, Northern Division. The Notice of Removal indicated the appearance of

Terry L. Butts and, separately, Michael E. Jones of the law firm of Jones & Coots, LLC, as

“Attorneys for Defendants Lehman Brothers Holdings, Inc., d/b/a Lehman Capital, Midland Loan

Services, Inc., Peter R. Kern, and Oak Asset Management, LLC” and David B. Anderson, Ryan

K. Cochran, and Deanna L. Weidner as “Attorneys for Capital Seven, LLC, Jolly Roger I, Inc.,

n/k/a Jolly Roger, LLC; Peter Fahey, and Larry Carlson.” While the Notice of Removal bears the

signature of Michael E. Jones, none of the other counsel executed the Notice of Removal. In

fact, without dispute, both the signature of Terry L. Butts, as co-counsel for the Lehman Brothers

defendants and David B. Anderson, as counsel for the Jolly Roger defendants belong to some

unknown third party. For the Court’s convenience, attached to this Memorandum as Exhibit “A”

is the Notice of Removal filed on July 21, 2006. 

3. On August 8, 2006, a “Notice of Correction” was filed by Debra P. Hackett, Clerk

of the United States District Court, Middle District of Alabama, which stated that “Notice of

Correction is being filed this date to advise that the referenced pleading was filed on 7-21-2006

with improper signatures as one person is not allowed to sign another’s name.” (emphasis

added) A copy of the Notice of Correction is attached to this Memorandum as Exhibit “B.”

4. The Notice of Correction referenced a revised Notice of Removal filed on August

8, 2006, for the purpose of correcting the procedural flaw referenced hereinabove as the Notice of

Removal filed on August 8, 2006, bears what purports to be the signatures of Terry L. Butts, as

co-counsel for the Lehman Brothers defendants and David B. Anders, as counsel for the Jolly

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Notably, while the “corrected” Notice of Removal was not filed with the Court until 1

August 8, 2006, the Certificate of Service bears a July 21, 2006 date.

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Roger defendants. The revised and “corrected” Notice of Removal (attached hereto as Exhibit

1

“C”) filed on August 8, 2006, was filed approximately forty-seven (47) days after service of the

Complaint upon the first served defendants, Lehman Brothers and Midland on June 22, 2006. 

LEGAL ARGUMENT

5. The proper procedure for the removal of a case from state to federal court is set

forth in 28 U.S.C. § 1446. For a civil action to be properly removed, the defendant, or

defendants, must file a Notice of Removal, along with the entirety of the state court file,

including all process, pleadings, orders and other documents therein that have been served upon

the defendant or defendants to the appropriate United States District Court. See 28 U.S.C. §

1446(a). The Notice of Removal must be signed pursuant to Rule 11 of the Federal Rules of

Civil Procedure. Finally, the removal of a state court case to federal court is governed by strict

time constraints. Specifically, 28 U.S.C. § 1446(b) states:

The notice of removal of a civil action or proceeding shall be filed

with thirty days after the receipt by the defendant, through

service or otherwise, of a copy of the initial pleading setting

forth the claim for relief upon which such action or proceeding

is based, or within thirty days after service of the summons upon

the defendant if such initial pleading has been filed in court, and is

not required to be served on the defendant whichever period is

shorter. 

(emphasis added)

6. Pursuant to 28 U.S.C. § 1447(c), a party in opposition to the removal may request

the court to remand such a case if the removal is procedurally flawed, as set forth in part below:

A motion to remand the case on the basis of any defect on the lack

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of subject matter jurisdiction must be made within thirty days after

the filing of notice of removal under section 1446(a) . . . 

28 U.S.C. § 1447(c).

7. It is without dispute that the Notice of Removal filed on July 21, 2006, is

procedurally defective. On its face, the Notice of Removal does not bear the signature of all of

the removing parties or their respective counsel, but instead bears the signature of some unknown

third party for at least two of the counsel. Certainly, the Defendants recognize that the Notice of

Removal filed on July 21, 2006, is defective; otherwise, there would be no good reason for the

filing of the “corrected” Notice of Removal on August 8, 2006. Apparently, the Defendants’

intent was to attempt to “cure” the defective Notice of Removal some forty-seven (47) days after

the service of the Summons and Complaint filed in state court upon Lehman Brothers and

Midland by filing the second Notice of Removal. However, both the clear language of the

removal statutes and the applicable case law hold that the Notice of Removal filed on August 8,

2006, does not remedy the procedural flaws in the Notice of Removal filed on July 21, 2006. As

such, this case is due to be remanded back to the Circuit Court of Pike County, Alabama. 

8. The facts before the Court indicate that while one of the separate counsel for the

Lehman Brothers defendants did sign the Notice of Removal filed on July 21, 2006, counsel for

the Jolly Roger defendants did not. Though it is not always necessary for all defendants to sign a

notice of removal of a state court action to federal court, each defendant who has been served

must at least communicate its consent to the federal court no later than thirty (30) days from the

date on which the first defendant was served. 28 U.S.C. § 1446(b). As evidenced by the

“corrected” Notice of Removal filed on August 8, 2006, the Jolly Roger defendants did not

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timely do so.

9. Although not expressly set forth in the removal statute, it is well established that,

in cases involving multiple defendants, each must join in the petition for removal. Chicago R.I.

& P.R. Co. v. Martin, 178 U.S. 245, 20 S. Ct. 854, 44 L.Ed. 1055 (1900). This general rule is

referred to the “rule of unanimity.” Newman v. Spectrum Stores, Inc., 109 F. Supp. 2d 1342

(M.D. Ala. 2000). As such, a notice of removal must do more than merely assert that all

defendants consent to removal. There 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 who have authority to do so, that is actually consented to such action.” Newman,

supra, at 1346 quoting Getty Oil Corp., Div. of Texaco, Inc. v. Insurance Co. of North America,

841 F.2d 1254, 1263 (5 Cir. 1988). While the thirty day time limitation is not jurisdictional and th

may be waived by the plaintiff, the time limitation is mandatory and “must be strictly construed.”

Newman, supra, at 1345. It has further been held that it is improper to allow one party, through

counsel, to attempt to represent the position of other parties without their written consent, and not

only in the attempted removal of cases, but generally in all litigation. Newman, supra, at 1346. 

See also, Production Stamping Corp. v. Marilyn Cas. Co., 829 F. Supp. 1074, 1076-77 (E.D.

Wis. 1993). 

10. A court considering a removal must strictly construe the requirements of the

removal statute, and failure to comply with the requirements of the removal statute are grounds

to support a Motion to Remand. Newman, supra at 1345. The remand of a case to the original

state court is required, when that defendant untimely files its notice of removal. Id. When a

plaintiff suggests that the notice of removal is defective, the removing defendants bear the burden

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of proving that the removal was properly effectuated. Id. In the Eleventh Circuit, the remand of

removed cases in instances where federal jurisdiction is not absolutely clear is the proper route. 

Id. It is generally recognized that the removal statutes do not afford a district court discretion to

overlook or excuse irregularities within the procedures described in the statutes and that defects

within the removal procedure are proper grounds for remand. Foster v. Chesapeake Ins. Co.,

Ltd., 933 F.2d 1207, 1215 (3 Cir. 1991). When there is doubt as to the propriety of removal and rd

the removal procedure is challenged as defective, all doubts should be construed against removal

and in favor of remand. Id. See Boyer v. Snap-On Tools Corp., 913 F.2d 108 (3 Cir. 1990), rd

cert. denied, 498 U.S. 1085, 111 S. Ct. 959, 112 L.Ed. 2d 1046 (1991); Samuel v. Langham, 780

F. Supp. 424 (N.D. Tex. 1992). 

11. Rule 11 of the Federal Rules of Civil Procedure requires that each pleading,

motion or other document submitted to a court be signed by a party or its attorney of record, if

represented. As Rule 11 does not authorize a party to make representations or file pleadings on

behalf of another party, each defendant or its official representative is required to timely indicate

its joinder in or consent to the removal of an action from state court to federal court. 28 U.S.C. §

1446(b); F.R.C.P. 11; see Spillers v. Tilman, 959 F. Supp. 364 (S.D. Miss. 1997); Stonewall

Jackson Memorial Hospital v. American United Life Insurance Company, 963 F. Supp. 553

(M.D. W. Va. 1997); see also, Getty Oil Corporation, supra, 841 F.2d 1254 (5 Cir. 1998). th

While a defendant is free to amend its notice of removal within the thirty (30) day period set

forth in 28 U.S.C. § 1446(b), once the thirty (30) day period has ended, a subsequent amendment

is not sufficient to cure the defect in the removal proceedings. 28 U.S.C. § 1446(b); see also,

Newman, supra, at 1346; Stonewall Jackson Memorial Hospital, supra, at 558-559; see also,

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generally, Kisor v. Collins, 338 F. Supp. 2d 1279 (N.D. Ala. 2004).

12. This case is on all fours with the facts and rulings set forth in Newman, supra, a

case authored by this Honorable Court. In Newman, under similar facts, this Court ruled that a

notice of removal that asserts that all defendants join in removal is insufficient, in that each

removing defendant must timely file an independent statement of consent with the court within

the time constraints of the federal removal statutes. Id. at 1346. This Court further ruled that

neither a late filed consent nor some assertion by counsel that a statement within the notice of

removal was authorized can cure the defective notice of removal. Id. Finally, this Court stated

that while a notice of removal pursuant to 28 U.S.C. § 1446(b) may be amended by the defendant

prior to the expiration of the thirty (30) day removal period, procedural flaws thereafter cannot be

corrected. Id. at 1347. See also, Kisor, supra, at 1281 (“This court, sitting as a court of limited

jurisdiction, cannot ignore a manifest procedural defect that a plaintiff has expressly complained

about just because the defect was inadvertent or because the removing defendant tenders a

belated correction.”). 

CONCLUSION

Based on the foregoing, the rule of law is specific that the notice of removal filed on July

21, 2006, is procedurally flawed and the filing of the “corrected” Notice of Removal on August

8, 2006, is of no moment. Based on the statutory and case law cited hereinabove, the Plaintiff

requests the Court to remand this case back to the Circuit Court of Pike County, Alabama. The

Plaintiff requests such other and more equitable relief as the Court deems proper.

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/s/Lee R. Benton

Lee R. Benton

ASB: 8421-E63L

/s/C. Steven Ball

C. Steven Ball

ASB: 5126-A64C

OF COUNSEL:

BENTON & CENTENO, LLP

2019 Third Avenue North

Birmingham, Alabama 35203

Phone: (205) 278-8000

Facsimile: (205) 278-8008

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing pleading by electronic

transmission or by first class mail to the following on this the 11 day of August, 2006: th

David B. Anderson

Waller Lansden Dortch & Davis, L.L.P. 

1901 6 Ave N. Ste. 1400 th

Birmingham, AL 35203

Terry L. Butts

P.O. Box 272

Luverne, AL 36049

Michael E. Jones

Jones & Coots, LLC

P.O. Box 367

Luverne, Alabama 36049

Steven G. Brody

King & Spalding, LLP

1185 Avenue of the Americas

New York, NY 10036

/s/C. Steven Ball

Of Counsel

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