IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Ronald A. Nichols, :

Plaintiff, :

v. : Case No. 2:17-cv-187

 : 

Adena Health System, et al., Magistrate Judge Kemp

Defendants. : 

ORDER

This case is before the Court to consider a supplemental

filing made concerning the Plaintiff’s motion to remand to state

court. Based on that filing, the motion will be granted. The

explanation for the Court’s decision begins with reference to a

prior order (Doc. 32) which outlined the issue in this case.

In that order, the Court noted that although the motion to

remand stood unopposed, the Court still had to satisfy itself

that remand was statutorily permissible. The basis of the motion

was that not all of the defendants had consented to the removal,

so that it violated the “rule of unanimity” which is found in 28

U.S.C. §1446(b)(2)(A). That provision requires that “[w]hen a

civil action is removed solely under section 1441(a), all

defendants who have been properly joined and served must join in

or consent to the removal of the action.” 

The Court explained the key issue this way:

According to the docket sheet of the state court, which

is attached as an exhibit to the motion to remand, all

seven defendants had been served as of the date the

notice of removal was filed. The notice was filed on

behalf of, and signed by counsel for, three of them -

Choice Recovery, Inc., Choice Recovery, LLC, and First

Federal Credit Control, Inc. See Doc. 1. However, the
notice affirmatively represents that it was being filed

“with consent of counsel for the remaining

defendants....” Id. Under the case law in this

Circuit, see Harper v. AutoAlliance Intern., Inc., 392

F.3d 195 (6th Cir. 2004), that would appear to be

sufficient to satisfy the “unanimity requirement” found

in §1446(b)(2)(A). Some courts have held that

corporate parties may express that consent only through

counsel, see, e.g., Polston v. Millennium Outdoors,

LLC, 2017 WL 878230 (E.D. Ky. March 6, 2017), but the

notice filed in this case represents that the consent

came from counsel, so that does not appear to be an

issue here, at least on the basis of the current

record.

Some of the non-removing defendants have

affirmatively indicated their consent to the removal. 

See Docs. 21 and 22, in which Adena Health Systems and

JP Recovery Services do so. Neither Columbus Radiology

Corporation, which has not appeared in the case, nor

Synerprise Consulting Services, Inc., which has been

voluntarily dismissed, did so, but if consents were

obtained from both of those defendants prior to

removal, as stated in the notice, that would not seem

to matter.

See Doc. 32, at 2-3. 

In order to determine the true state of affairs, the Court

directed counsel for the removing defendants to advise the Court

in some fashion whether proper consent for removal was actually

obtained. That filing was made on May 9, 2017, and provides the

following additional facts.

Prior to removing the case, counsel for the removing

defendants did seek consent to removal from counsel for the other

parties. He concluded, based upon the wording of certain filings

or docket entries made in the state court, that Charles Ticknor,

counsel for Adena Health System, also represented Columbus

Radiology. As it turned out, that assumption was incorrect. As

a result, he never obtained, prior to removal, consent to the

removal from anyone associated with or actually authorized by

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Columbus Radiology to consent. However, counsel also states that

after the removal occurred, he received telephone consent to the

removal from “a representative of Columbus Radiology.” His

declaration is silent on whether that representative was an

attorney, and also as to the precise date of the conversation.

Those omissions prevent the Court from having every fact it

would like to have in order to decide the motion to remand. 

However, the Court does know this. Columbus Radiology was served

on January 31, 2017. It likely had thirty days to consent to

removal starting with date that the three removing defendants

were served, which was February 2, 2017. See, e.g., Bierly v.

Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999). 

In that case, it had until March 4, 2017, to make a timely

consent. Its first consent - assuming that the “representative”

to whom counsel spoke had the ability to provide a valid consent

- came after removal, which occurred on March 3, 2017. There is

a possibility that if the consent was valid (but see Polston v.

Millennium Outdoors, LLC, 2017 WL 878230 (E.D. Ky. March 6,

2017), holding that a corporate party can consent only through

counsel), it was timely received, but the record does not

affirmatively reflect that. The notice of removal refers only to

the invalid consent solicited from Mr. Ticknor. The declaration

of counsel does not affirmatively describe a timely consent. 

The Court recognizes that there is some disagreement about

whether there is now a 30-day time limit on consenting to

removal. See, e.g., Couzens v. Donohue, 854 F.3d 508 (8th Cir.

2017). There is even a disagreement among district courts within

the Sixth Circuit. Compare Columbus Equipment Co. v. RKJ

Enterprises, LLC, 2015 WL 5023059, *3 (N.D. Ohio Aug. 24,

2015)(holding that the “the timing of the consent of [other

defendants] to the removal of this case is critical to the

analysis” of compliance with the rule of unanimity) with Gaynor

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v. Miller, 205 F.Supp.3d 935, 940 (E.D. Tenn. 2016)(holding that

“§1446(b)(2)(C) does not require such consent to be filed within

thirty days...”). Rather than resolve that matter, it is

sufficient to say here that there are substantial doubts about

the validity of removal, including whether proper consent was

ever obtained from Columbus Radiology, which is still

unrepresented in this case. Given such doubts and the failure of

the record affirmatively to support removal, the Court grants the

motion to remand (Doc. 20) and remands this case to the

Chillicothe, Ohio Municipal Court. 

 /s/ Terence P. Kemp 

United States Magistrate Judge

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