IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

VIKING, INC., )

)

Plaintiff, )

)

vs. ) CAUSE NO. 1:16-CV-25

)

NBD INTERNATIONAL, INC. and )

SELECTIVE INSURANCE COMPANY )

OF AMERICA, )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion to

Remand, filed by the plaintiff, Viking, Inc., on February 19, 2016

(DE #20). For the reasons set forth below, the Motion to Remand is

GRANTED and this case is REMANDED back to the Whitley Superior

Court of Indiana. 

BACKGROUND 

On January 6, 2016, the plaintiff, Viking, Inc. (“Viking”)

filed its complaint against NBD International, Inc. (“NBD”) and

Selective Insurance Company of America (“Selective”) (collectively,

“Defendants”) in the Whitley Superior Court of Indiana. (DE #4.) 

The case was assigned cause number 92D01-1601-PL-000006. (Id.) 

Viking’s claims arise from a “catastrophic fire loss . . . at its
70,000 square foot headquarters and manufacturing facility,” and

the complaint alleges personal property and business losses due to

Defendants’ negligence and breach of contracts. (DE #4.) 

Selective was served with a copy of the summons and complaint on

January 11, 2016. (See DE #1, p. 1 & DE #22, p. 1.) NBD was

served with a copy of the summons and complaint on January 13,

2016. (See DE #11, p. 1.) On January 22, 2016, Selective filed

its notice of removal based on diversity jurisdiction. (DE #1.) 

In it, Selective states that NBD “has consented to the removal of

this action as evidenced by Exhibit B.” (Id. at 3.) Exhibit B is

a copy of an email from Jennifer Kalas (“Attorney Kalas”), counsel

for Selective, to Adam D. Fuller (“Attorney Fuller”), counsel for

NBD,1

 asking Attorney Fuller to confirm that NBD consents to the

removal. (DE #1-3.) In that email, Attorney Fuller states that

NBD “consents to the removal.” (Id.) The notice of removal

itself, however, is only signed by Attorney Kalas. (DE #1, p. 4.)

On February 19, 2016, Viking filed the instant motion to

remand, arguing that the notice of removal is defective because the

email correspondence does not meet the requirements for formalizing

consent to remove in the Seventh Circuit. (DE #20.) On February

22, 2016, Selective filed an amended notice of removal, this time

attaching two emails as exhibits in support of its contention that

1

 At the time the notice of removal was filed, Attorney Fuller had not

entered an appearance in the case. He did not do so until March 4, 2016. (DE

#32.)

2
NBD has consented to removal. (DE #22; see also DE #22-2 & DE #22-

3.) The amended notice of removal is signed by both Attorney Kalas

and Lindsay Hurni Lepley (“Attorney Lepley”), additional counsel

for NBD. (DE #22, p. 4.)2 Selective filed its response in

opposition to Viking’s motion to remand on March 9, 2016, arguing

that the motion should be denied because Selective had obtained

written consent from NBD prior to removal in the form of an email,

which was attached and incorporated into Selective’s notice of

removal. (DE #41.) Selective also argues that the amended notice

of removal, which has been signed by both Defendants, cures any

alleged defect. (Id.) On March 16, 2016, Viking filed its reply, 

arguing that the notice of removal is defective and that Selective

has not overcome the procedural failure. (DE #43.) The motion is

thus ripe for adjudication. 

DISCUSSION

A civil case brought in state court may be removed to a

district court which has original jurisdiction. 28 U.S.C. §

2

 On March 9, 2016, NBD filed a motion to transfer pursuant to 28

U.S.C. section 1404(a) based upon its assertion that a forum selection clause,

designating the courts of Summit County, Ohio as the proper forum for this

action, exists in the work authorization contract at issue between NBD and

Viking. (DE #38.) NBD notes that it “specifically reserves the right to file

a motion under Rule 12(B) of the Indiana Rules of Trial Procedure, or to

convert this Motion to one under Rule 12(B), in the event that this Motion is

remanded to state court, where the procedure for enforcing a forum-selection

clause is properly brought under Rules 12(B) and 75.” (Id. at 2, n. 1.) 

Because the instant Opinion and Order deals only with the determination of the

motion to remand, the Court takes no position on the motion to transfer. 

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1441(a). Defendants who wish to remove a civil action from state

court to federal court must file a “notice of removal signed

pursuant to Rule 11 of the Federal Rules of Civil Procedure and

containing a short and plain statement of the grounds for removal

. . . .” 28 U.S.C. § 1446(a) (emphasis added). The requirements

for removal are as follows:

The notice of removal of a civil action or

proceeding shall be filed within 30 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 30 days after the service of summons

upon the defendant if such initial pleading

has then been filed in court and is not

required to be served on the defendant,

whichever period is shorter.

28 U.S.C. § 1446(b)(1). While the thirty day deadline is not

jurisdictional, it “is a strictly construed rule of procedure, and

failure to comply with this rule is ground for remand, absent

waiver.” Macri v. M & M Contractors, Inc., 897 F. Supp. 381, 383-

84 (N.D. Ind. 1995) (citing N. Ill. Gas Co. v. Airco, Inc., 676

F.2d 270, 273 (7th Cir. 1982)). In general, “all defendants who

have been properly joined and served must join in or consent to the

removal of the action.” 28 U.S.C. § 1446(b)(2)(A). In the Seventh

Circuit, the requirement of timely written consent is construed

strictly. See Shaw v. Dow Brands, Inc., 994 F.2d 364, 368 (7th

Cir. 1993), overruled on other grounds by Meridian Sec. Ins. Co. v.

Sadowski, 441 F.3d 536, 540 (7th Cir. 2006). As the Seventh

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Circuit has stated, “[a] petition for removal fails unless all

defendants join it. To ‘join’ a motion is to support it in writing

. . . .” Roe v. O’Donohue, 38 F.3d 298, 301 (7th Cir. 1994)

(internal citations omitted), abrogated on other grounds by Murphy

Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). 

Several years later, the court expanded upon that notion when

determining that a removal notice was defective because, even

though the defendant had noted that “all properly served defendants

agreed to the removal, . . . not all of these defendants joined in

the petition because not all of them signed it.” Gossmeyer v.

McDonald, 128 F.3d 481, 489 (7th Cir. 1997); see also Boruff v.

Transervice, Inc., No. 2:10-CV-322, 2011 WL 1296675, *2 (N.D. Ind.

March 30, 2011) (“Although [removing defendant’s] notice of removal

represents that ‘[co-defendant] consents to the removal,’ this

statement is insufficient to meet the Seventh Circuit’s requirement

of express, written consent.”) 

A party who believes removal was improper may file a motion to

remand pursuant to 28 U.S.C. section 1447. Unless the defect

relates to the lack of subject matter jurisdiction, the motion must

be made within thirty days of the filing of the notice of removal. 

28 U.S.C. § 14479(c). As to amendments: 

[w]ithin the thirty-day time limit for removal

imposed by § 1446(b), a removal petition may

be freely amended to cure any defects. Even

after the thirty-day time limit, defects as to

allegations of jurisdiction may be cured by

amendment in accordance with 28 U.S.C. § 1653. 

5
Defects in removal procedures may only be

cured within the statutory time period,

however, unless they are waived. 

Macri, 897 F. Supp. at 384 (internal citations omitted). The

Seventh Circuit has allowed untimely amendments to cure defective

notices of removal in certain circumstances, “[b]ut in each of

these cases, multiple factors – often including the fact that the

unconsenting party’s consent was not required for removal –

supported the Court’s decision not to remand the case.” Boruff,

2011 WL 1296675 at *4-5 (collecting cases and finding that the

defendant’s amended notice of removal was insufficient to avoid

remand under relevant Seventh Circuit precedent). 

Here, Selective was served with a copy of a summons and

complaint on January 11, 2016, while NBD was served with the same

two days later. The initial notice of removal was filed on January

22, 2016, within the thirty day time frame. However, the amended

notice of removal was not filed until February 22, 2016, which was

well beyond the deadline. Viking argues that the initial notice is

defective because the email attached to the notice indicating that

NBD “consents to the removal” does not meet the Seventh Circuit’s

strict requirement of express, written consent. Viking also states

that there is no reason an amendment to the notice of removal filed

beyond the thirty day removal period should prevent remand. 

Selective, on the other hand, argues that the initial notice of

removal adequately evidenced NBD’s actual consent because the email

6
was attached to and incorporated into the notice. Furthermore,

according to Selective, the amended notice of removal is officially

signed by NBD via Attorney Lepley, and it contains an additional

email evidencing NBD’s prior consent. In its response brief,

Selective also attaches a declaration of Attorney Fuller stating

that he had authority from NBD to consent to the removal at the

time the initial notice was filed. (See DE #41-1.) According to

Selective, these filings, collectively, “certainly comply” with the

Seventh Circuit’s requirements pertaining to removal. 

The Court agrees with Viking that the initial notice of

removal is defective. The procedural requirements of removal in

the Seventh Circuit are applied quite strictly, and, as Gossmeyer

makes clear, all served defendants must “support the petition in

writing, i.e. sign it.” Gossmeyer, 128 F.3d at 489 (noting that

even though the removal petition indicated that all properly served

defendants had agreed to remove the case, “not all of these

defendants joined in the petition because not all of them signed

it”). An unauthenticated email attached to the notice of removal

from an attorney who had not yet appeared in the action on behalf

of the non-removing defendant3

 is simply insufficient to establish

proper consent. See Komacko v. Am. Erectors, Inc., No. 2:12-CV3

 Attorney Fuller did not request to appear in this action until March

4, 2016, which is well beyond the thirty day removal deadline and over a month

after the initial notice of removal was filed. His request to appear was

granted the same day it was filed. 

7
495, 2013 WL 3233229, *2 (N.D. Ind. June 25, 2013) (the nonremoving defendant’s “email and letter consenting to removal is

insufficient to meet the Seventh Circuit’s strict requirement of

express, written consent, and the later filed notice of consent was

untimely”). While Selective argues that amendments to the removal

statute and a recent Supreme Court case, Dart Cherokee Basin

Operating Co., LLC v. Owens, 135 S.Ct. 547 (2014), have loosened

the Seventh Circuit requirements related to removal consent

procedures, the Court does not find this argument persuasive. In

Dart, the Court addressed the “single question” of whether, in a

class action case, “[t]o assert the amount in controversy

adequately in the removal notice, does it suffice to allege the

requisite amount plausibly, or must the defendant incorporate into

the notice of removal evidence supporting the allegation?” Dart,

135 S. Ct. at 551. Holding that the jurisdictional amount in a

notice of removal could be described in “short and plain” terms and

did not need to contain evidentiary submissions unless challenged,

the Supreme Court focused on the narrow issue of the amount in

controversy and did not address other procedural requirements of

the removal statute. Id. at 554. In fact, the Supreme Court

specifically declined to decide whether the presumption against

removal in “mine-run diversity cases” was proper in general because

the case before it was a class action, and it is clear that no such

“antiremoval presumption” exists when the Class Action Fairness Act

8
is at play. Id. Selective’s request that this Court extend the

reasoning regarding the jurisdictional amount in Dart to questions

of consent procedures in run of the mill diversity cases (such as

the instant one) is at odds with current Seventh Circuit precedent. 

See e.g. Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 758

(7th Cir. 2009) (“The party seeking removal has the burden of

establishing federal jurisdiction, and federal courts should

interpret the removal statute narrowly, resolving any doubt in

favor of the plaintiff’s choice of forum in state court.”);

Gossmeyer, 128 F.3d at 489 (removal petition is deficient if not

signed by all served defendants). As Viking points out, the notice

pleading rationale in Dart is perfectly logical in the context of

damages which are often highly fact-sensitive and may be difficult

to establish at the outset of a case; however, the analysis makes

little sense when applied to the separate matter of unanimity of

consent which requires a simple, easily obtained signature. The

procedural requirement of a signature is certainly not onerous in

a case where, as here, the defendants have admitted to

communicating prior to the filing of the notice of removal. 

Finally, the Court declines to find that Selective’s amended

notice of removal, which was filed outside of the thirty day

deadline, is sufficient to avoid remand. While the Seventh Circuit

has permitted belated amendments to cure defective notices of

removal in some circumstances, the factors supporting those

9
decisions are not present here. See e.g. N. Ill. Gas Co., 676 F.2d

at 274 (accepting untimely amendment because the state court record

“plainly disclosed” that the non-removing defendant was a “nominal

party”); Boruff, 2011 WL 1296675 at *5 (distinguishing cases where

“multiple factors” such as dismissal prior to removal, nominal

party status, and waiver via a failure to object supported the

decision not to remand). In this case, NBD’s consent to remove was

required, Viking has objected to the removal, and Selective offers

no compelling reason why NBD’s signature was omitted from the

initial petition and could not have been submitted within the

thirty day time frame; as far as the Court can ascertain, it simply

chose not to include NBD’s signature on the notice of removal and

to rely on an unauthenticated email instead. See Boruff, 2011 WL

1296675 at *6 (the court was “aware of no reason” proper written

consent could not have been submitted at the time of the filing of

the notice of removal considering that the removing defendant had

obtained verbal consent from the non-removing defendant prior to

that time); see also Komacko, 2013 WL 3233229 at *2. The time

limit is a “strictly construed rule of procedure,” and a plaintiff

has a “right to remand if the defendant did not take the right

steps when removing.” Macri, 897 F. Supp. 381, 383-84 (N.D. Ind.

1995). Because Selective did not take those proper steps in a

timely manner, the Court concludes that remand is appropriate in

this case. 

10
CONCLUSION

For the reasons set forth above, the Motion to Remand (DE #20)

is GRANTED and this case is REMANDED back to the Whitley Superior

Court of Indiana. 

DATED: September 8, 2016 /s/ RUDY LOZANO, Judge

United States District Court

11