Duncan K. Robertson v. GMAC Mortgage, LLC, et al.

28 U.S.C. 1446(b)(2)(A) states: “When 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.” Courts of Appeal and district courts in all the circuits are hopelessly divided over what this “unanimity of consent” provision actually means. The most liberal of the Circuits on this issue, the Ninth, held in this case that attorneys who when challenged refused to provide proof they had any attorney-client relationship with named defendants could vouch for one another and thereby establish “unanimity of consent” for purposes of establishing removal jurisdiction. Virtually, all other Courts of Appeal and district courts require more than this. Many employ what is called the “independent-and-unambiguous consent requirement” which requires all actual counsel who actually represent the named corporate and LLC defendants to express their client‟s actual consent to removal. Accordingly, the questions presented herein are -