* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 16 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

FARMLAND NATIONAL BEEF PACKING COMPANY, L.P.,

Plaintiff-Appellee,

v. STONE CONTAINER CORPORATION; JEFFERSON SMURFIT CORPORATION; SMURFIT-STONE CONTAINER CORPORATION; INTERNATIONAL PAPER COMPANY; GEORGIA PACIFIC CORPORATION; WEYERHAEUSER PAPER COMPANY; TEMPLE-INLAND INC.; GAYLORD CONTAINER CORPORATION; UNION CAMP CORPORATION; TENNECO INC.; TENNECO PACKAGING CORPORATION OF AMERICA; PACKAGING CORPORATION OF AMERICA, Defendants-Appellants. No. 04-3028 (D.C. No. 03-CV-1312-JTM)

(D. Kan.)

ORDER AND JUDGMENT *2

Before, KELLY , HENRY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff-appellee originally filed this antitrust suit against the twelve defendant companies in state court. Defendants-app ellants removed the case to federal court, see generally28 U.S.C. § 1446, but appellee believed that the notice of removal was defective. Appellee filed a motion to remand, but outside the thirty-day window allowed by § 1447(c). Appell ee argued that the district court lacked subject matter jurisdiction because th ere was no complete diversity of citizenship, and that the notice of removal was procedurally defective because, though signed by counsel, two company names were le ft off the signature block. Appellants responded to appellee’s motion, and also filed a motion to correct their clerical error in the notice of removal–but outside the thirty-day window allowed for removal by § 1446(b). The district court stric tly construed the defect against appellants and remanded the case to state court forappellants’ failure to file their unambiguous unanimous consent to removal within thi rty days after service of the3

initial pleading. See Pet. for Writ of Mandamus, Tab F; § 1446(b). The district court did not expressly rule on appellants’ motion to correct. See Pet. for Writ of Mandamus, Tab F. Appellants now seek to overturn the district court’ s order so that the case can proceed in federal court. We granted their mot ion to expedite their appeal, and appellee has responded. Appellee’s motion to d ismiss also remains to be decided. As we noted in our prior order, the initial questio n in any challenge to an order remanding a removed case is whether the reman d order is reviewable at all. SBKC Serv. Corp. v. 1111 Prospect Partners, L.P. , 105 F.3d 578, 580 (10th Cir. 1997). 28 U.S.C. § 1447(d) states that a remand or der “is not reviewable on appeal or otherwise,” except that a remand authoriz ed by 28 U.S.C. § 1443 is reviewable. The exception under § 1443 is not appl icable here, so it appears at first blush that review of the district court’s rem and order is barred. However, “the application of § 1447(d) is not as broad as it s language suggests. Appellate review is barred by § 1447(d) only when the distric t court remands on grounds permitted by § 1447(c).” Dalrymple v. Grand River Dam Auth. , 145 F.3d 1180,4

1184 (10th Cir. 1998) (citing Things Remembered, In c. v. Petrarca , 516 U.S. 124, 127-28 (1995) and Thermtron Prods., Inc. v. Hermans dorfer , 423 U.S. 336, 345-46 (1976), overruled on other grounds , Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 714-15 (1996)). The district court did not mention § 1447(c) in its order. See Pet. for Writ of Mandamus, Tab F. But this court held in Dalrymp le that the mere omission of a citation to § 1447(c) is not sufficient to allow review by this court, just as the mere citation to § 1447(c) is not sufficient to barreview by this court. Dalrymple , 145 F.3d at 1184. Rather, “[i]n order to evaluat e the reviewability of the district court’s remand order[], [this court] m ust independently review the record to determine the actual grounds upon which the district court believed it was empowered to remand.” Id. In this case, the district court relied on two lega l points: first, that § 1446(b) provides that the notice of removal must be filed within thirty days after the defendants received the initial pleading, and, second, that all of the defendants must give their consent to removal withi n the thirty-day window. Pet. for Writ of Mandamus, Tab F at 1-3. Relying o n the fact that two defendant company names were missing from the signature blockon the notice of removal (even though those two defendants were specificallyidentified in the first paragraph of the notice of removal, and their citiz enship specifically pleaded), the5

court concluded that it was ambiguous whether the two companies consented to removal and construed the ambiguity against removal . The court found it unnecessary to consider appellee’s other arguments. Appellants maintain that the district court’s orderof remand is subject to review in this court and should be reversed. They argue that: (1) the absence of two defendant company names from the signature bloc k is not a defect that can justify a remand under § 1447(c); and (2) even if i t is, appellee’s motion to remand was untimely to raise any procedural defects in the notice of removal. Appellants’ second argument necessarily implicates a third question they did not raise: (3) whether the district court was authoriz ed to remand based on the alleged procedural defect outside the thirty-day wi ndow provided in § 1447(c) even if appellee’s motion to remand was untimely. Appellee argues that the appeal should be dismissed because: (1) appellants ’ notice of removal was procedurally defective; and (2) its motion to reman d was timely or, even if it was not, appellants waived any objection to its untimel y motion to remand by not raising that objection in the district court. Appe llee also asserts in passing that the district court could have remanded for lack of subject matter jurisdiction due to lack of complete diversity of citizenship. We n eed not address this last assertion because it is unsupported by any argumentor authorities, and belied by6

the facts asserted in appellants’ notice of removal . See Phillips v. Calhoun , 956 F.2d 949, 953-54 (10th Cir. 1992). Upon consideration, appellee’s motion to dismiss is denied. Under the circumstances of this case, our authority to reviewthe district court’s remand order is intertwined with the result of our review. Appellee’s motion to remand was untimely to raise any procedural defects under 28 U.S.C. § 1447(c), and the district court therefore was not authorized under § 1447(c) to remand based on the procedural defect of lack of unanimous consent to r emoval. As a result, we have jurisdiction to review the remand order and, for th e same reason, we reverse the district court and direct it to vacate its remand o rder.
Analysis This court has held that for a paper to fall withinthe removal statutes, it must be unambiguous. Cf. Akin v. Ashland Chem. Co. , 156 F.3d 1030, 1035-36 (10th Cir. 1998) (holding that ambiguous initial pl eading was not “unequivocal notice of the right to remove” and did not trigger time for defendants to file notice of removal under § 1446(b)). It is not nece ssary for us to decide whether the omission of the name of a defendant on a signature block in these circumstances renders the notice ambiguous, let alo ne constitutes a procedural defect, because appellants’ second argument has mer it–the untimely filing of1 Appellee argues that appellants waived their object ion to its untimely

motion to remand by not raising the objection in th e district court. We exercise our discretion to consider appellants’ challenge to the timeliness of appellee’s motion to remand, even though appellants did not ra ise this argument in the district court. See Singleton v. Wulff , 428 U.S. 106, 120-21 (1976). The issue is one of law, not of fact; the record is adequate forour review; and the resolution of the question is not in doubt.
7 appellees’ motion to remand left the district courtwithout authority under § 1447(c) to remand based on that ostensible proced ural defect. 1 Our examination of the timing of appellee’s motion to remand begins with the overriding principle that because federal remov al jurisdiction is statutory in nature, it is strictly construed. See Shamrock Oil & Gas Corp. v. Sheets , 313 U.S. 100, 108-09 (1941). “[A]ll doubts are to be resolv ed against removal.” Fajen v. Found. Reserve Ins. Co. , 683 F.2d 331, 333 (10th Cir. 1982). It is true that all of the defendants must consent to removal. Wisc. Dep’ t of Corr. v. Schacht , 524 U.S. 381, 393 (1998) (Kennedy, J., concurring); Cornwall v. Robinson , 654 F.2d 685, 686 (10th Cir. 1981); §§ 1441(a), 144 6(a). But the lack of unanimous consent is a procedural defect, not a jur isdictional defect. SBKC Serv. Corp. , 105 F.3d at 580; Sheet Metal Workers Int’l Ass’n v. Seay , 693 F.2d 1000, 1005 n.8 (10th Cir. 1982). Under § 1447(c), “[a] m otion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of re moval under section 1446(a).”8

Section 1446(a) states that “defendants desiring to remove any civil action . . . shall file in the district court of the United Stat es . . . a notice of removal.” Appellee argues that the thirty-day period for its motion to remand started to run when a copy of the notice of removal was fil ed in the state court. See § 1446(d). But that argument contravenes the plainlanguage of § 1447(c). The time began to run when appellants filed their notic e of removal in the district court. Therefore, appellee’s motion to remand was untimely. Appellants’ notice of removal was docketed in federal court on Friday, August 29, 2003, and appellee filed its motion to remand on Tuesday, Sep tember 30. It was due on Monday, September 29 (because the thirtieth day fel l on Sunday). Because appellee’s motion to remand was not filed within th irty days after the notice of removal was filed in the district court, the distri ct court lacked discretion under § 1447(c) to remand based on a procedural defect. See Loftis v. United Parcel Serv., Inc. , 342 F.3d 509, 516-17 (6th Cir. 2003); In re Bethe sda Mem. Hosp.,
Inc. , 123 F.3d 1407, 1410 (11th Cir. 1997); Hamilton v. Aetna Life & Cas. Co. , 5 F.3d 642, 643-44 (2d Cir. 1993) (per curiam); In re Shell Oil Co. , 932 F.2d 1523, 1528-29 (5th Cir. 1991). All of the circuit courts to have addressed the question have held that the thirty-day period binds the district court as well as the party opposing removal. See Loftis , 342 F.3d at 516-17; Bethesda Mem. Hosp. , 123 F.3d at 1410; In re Continental Cas. Co. , 29 F.3d 292, 294-95 (7th Cir. 1994);9

Hamilton , 5 F.3d at 643-44; Maniar v. FDIC , 979 F.2d 782, 784-85 (9th Cir. 1992); FDIC v. Loyd , 955 F.2d 316, 322 (5th Cir. 1992); Air-Shields, I nc. v. Fullam , 891 F.2d 63, 65 (3d Cir. 1989). As a result, eve n if the missing company names on the notice of removal originally put unani mous consent to removal in doubt, the basis of the district court’s remand in this case is a procedural defect and the defect was untimely raised. Therefore, the district court’s action was not authorized by § 1447(c), review in this court is no t barred by § 1447(d), and the district court’s remand order must be vacated. We need not decide whether the district court should have acknowledged appellants’ motion to correct their notice of removal. Appellee’s motion to dismiss is DENIED. The distri ct court’s remand order is REVERSED and the district court is directe d to vacate it.

ENTERED FOR THE COURT PER CURIAM