Fair Debt case remanded based on lack of consent to removal

| Nov 9, 2015 | Firm News

Rhode Island’s federal district court has remanded a Fair Debt Collection Practices Act case to state court because not all the defendants expressly consented to removal within 30 days of the removal.  Plaintiff filed suit in Superior Court alleging violations of the FDCPA, as well as of the Rhode Island Fair Debt Collection Practices Act and the Rhode Island Deceptive Trade Practices Act.  The suit named one individual and two corporations as defendants.  No defendants answered the case and default entered.  An hour after default entered, the individual removed the case.  The removal notice said that “[u]pon information and belief, all other codefendants would consent to the Removal…”  However, the corporations did not file a consent or otherwise express their consent to the court.  Plaintiff moved to remand arguing that all defendants must consent to removal, the corporate defendants had not consented, and the case should be remanded.

The court said that when a case involves multiple defendants, the “rule of unanimity” requires that all of the defendants “join” the removal petition.  Further, they must manifest their consent to removal within 30 days of the removal.  The court interpreted the statement in the petition about the codefendants to indicate that they did not consent at the time of removal.  The individual defendant argued that the codefendants were dissolved corporations so their consent was unnecessary.  However, the court said, under Rhode Island law, dissolved corporations have two years after dissolution in which they can sue or be sued and that plaintiff’s suit was within the two years. Finally, the individual defendant said that as a prinicipal of the dissolved corporations he could consent to the removal.  But, the court said such consent must be provided within 30 days of removal.

Laccinole v. Recovery Resources, LLC, C.A. No. 14-455, 2015 WL 5675092 (D.R.I. Sept. 25, 2015)

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