Any case where a motion to remand back to state court is denied seems like it’s worth writing about these days …
A District Court judge in New York has denied a plaintiff’s motion to remand a Fair Debt Collection Practices Act case back to state court, rebuffing the plaintiff’s argument that remand was required because all of the defendants in the case did not consent to removing the case to federal court in the first place.
A copy of the ruling in the case of Johnson v. Afni, Inc., et al. can be accessed by clicking here.
The plaintiff filed the case in New York state court against three defendants, alleging they violated the FDCPA. One of the defendants removed the case to federal court, and another of the defendants consented to the removal. The third defendant was voluntarily dismissed from the case by the plaintiff, so it did not file a consent to have the case removed.
The plaintiff then sought to have the case remanded back to state court on the grounds that the defendants did not unanimously consent to removing the case to federal court. But because the plaintiff voluntarily dismissed the third defendant within the 30-day window that the defendant had to consent to the case being removed, its permission is not needed, ruled Judge John G. Koeltl of the District Court for the Southern District of New York.
While the Second Circuit Court of Appeals has yet to rule on whether consent to remove is required from discontinued defendants, Judge Koeltl said that a “reasonable reading” of the statute indicates it does not.
“Once a defendant has been voluntarily dismissed from the case, that party’s adversarial relationship with the plaintiff has ended, and therefore requiring that party’s consent to remove is unnecessary,” Judge Koeltl wrote. “A contrary reading could give a dismissed party the power to affect the legal rights of remaining parties in an action in which the dismissed party no longer held a legally cognizable interest.”
Judge Koeltl also denied a motion from the plaintiff for fees and costs, since the motion did not result in the case being remanded back to state court.
