IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES JARVIS, )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:16-CV-525

)

RONALD DAVIS, et al., )

)

Defendants. )

OPINION AND ORDER

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

Remand, filed by the plaintiff, James Jarvis, on September 12, 2016

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

GRANTED and this case is REMANDED back to the Marion Superior Court,

Civil Division 10. 

BACKGROUND 

On or about August 3, 2016, the plaintiff, James Jarvis

(“Jarvis”) filed a complaint in the Marion Superior Court against

Ronald Davis (“Dr. Davis”), Corizon, LLC (“Corizon”), Corizon Health,

Inc. (“Corizon Health”), and the Indiana Department of Correction

(“IDOC”). (DE #3.) The case was assigned cause number 49D10-1608-

CT-027644. (Id.) Jarvis filed an amended complaint on August 4,

2016, adding Advanced Correctional Healthcare, Inc. (“ACH”) and the

Hendricks County Sheriff’s Office (the “Sheriff’s Office”) as

additional defendants. (DE #4.) In his amended complaint, Jarvis
describes IDOC as a “department in the executive branch of the

Indiana state government,” the Sheriff’s Office as “a local

governmental entity that is responsible for caring for the Hendricks

County Jail and its prisoners,” Corizon, Corizon Health, and ACH

(collectively, “Healthcare Defendants”) as “provider[s of] medical

services for Indiana inmates,” and Dr. Davis as “a physician, acting

under color of state law, who was charged with the responsibility of

ensuring adequate medical for Indiana inmates, and who performed the

public function of administering medical services to inmates.” (Id.

at 1-2.) Jarvis alleges that he received “substandard and

deliberately indifferent medical care from Dr. Davis and the

Healthcare Defendants, including but not limited to being denied his

seizure medication” which led to him suffering personal injuries and

damages. (Id. at 2.) He brings claims for negligence against the

Healthcare Defendants, IDOC, and the Sheriff’s Office pursuant to

Indiana state law, and he brings a claim pursuant to 42 U.S.C.

section 1983 against Dr. Davis. (Id. at 3.) 

On August 11, 2016, Corizon and Corizon Health (collectively,

the “Corizon Defendants”) filed a joint notice of removal stating

that the case is removable as it “falls within the original

jurisdiction of this Court because it involves issues arising under

the Constitution or other laws of the United States.” (DE #1, p. 2.) 

The notice of removal also states that because Dr. Davis, ACH, the

Sheriff’s Office, and IDOC had not yet been served at the time of

filing, “all Defendants who have been served consent to the removal

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of this action.” (Id.)

On September 12, 2016, Jarvis filed the instant motion for

remand, arguing that the notice of removal is defective. (DE #20.) 

Specifically, Jarvis states that three of the non-removing

codefendants had been served by the time the notice of removal was

filed by the Corizon Defendants, yet they did not provide their

written consent to removal. According to Jarvis, the documentation

indicates that the complaint and summons were served on IDOC on

August 5, 2016, that IDOC was also served through the Indiana

Attorney General on August 9, 2016, that the Sheriff’s Office was

served on August 8, 2016, and that ACH was served on August 9, 2016. 

(DE #20; see also DEs #20-1 through #20-5.) The Corizon Defendants,

joined by IDOC,1 filed a response in opposition to the motion for

remand on September 16, 2016. (DE #23.) In it, they do not dispute

the dates of service noted above; however, they argue that the Court

should exercise its discretion and choose not to remand the case

because the remaining codefendants who have now been served2 have

cured the defect by indicating their consent to removal via emails

dated September 12-13, 2016. (Id. at 1-2; see also DE #23-1.) In a

reply filed on September 21, 2016, Jarvis argues that the attempt to

cure the procedural defect is untimely and insufficient to avoid

remand. (DE #25.) The motion is thus ripe for adjudication. 

1

 The Corizon Defendants and IDOC are represented by the same attorney,

Carol A. Dillon. (See DEs #18, #19, & #22.)

2

 Dr. Davis remains unserved at this point. 

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DISCUSSION

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

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

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F.3d 536, 540 (7th Cir. 2006). As the Seventh Circuit Court of

Appeals 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

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

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, the Corizon Defendants were served with the complaint and

summons on August 5, 2016. IDOC was served the same day, and the

Sheriff’s Office and ACH were served on August 8 and 9, 2016,

respectively. The notice of removal was filed on August 11, 2016,

which was within the thirty day time frame. However, Jarvis argues

that the notice is defective because it was not signed by IDOC, the

Sheriff’s Office, or ACH and thus does not meet the Seventh Circuit’s

requirement of express, written consent. 

The Court agrees with Jarvis that the 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

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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”). Emails expressing

consent from parties (who had been served at the time of removal)

that were provided to the Court beyond the thirty day removal time

frame are simply insufficient to establish proper consent. See

Komacko v. Am. Erectors, Inc., No. 2:12-CV-495, 2013 WL 3233229, *2

(N.D. Ind. June 25, 2013) (the non-removing 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”). Furthermore, while the

Seventh Circuit has permitted belated amendments to cure defective

notices of removal in some circumstances, the factors supporting

those 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, the consent of IDOC, the

Sheriff’s Office, and ACH were required, and Jarvis has objected to

the removal. 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). The Corizon Defendants argue that the

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Court should exercise its discretion to deny the motion for remand

because Dr. Davis could simply file a notice of removal himself once

he is served, which would bring the case back to federal court and

amount to a waste of resources. However, the Court agrees with

Jarvis that such an argument is speculative, as Dr. Davis currently

remains unserved in this matter. Because the notice of removal is

defective and has not been cured in a timely manner, the Court

concludes that remand is appropriate in this case. 

CONCLUSION

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

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

Court, Civil Division 10. 

DATED: October 27, 2016 /s/ RUDY LOZANO, Judge

United States District Court

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