The Court in Crockett ex rel. Carter v. General Motors Corp., 2008 WL 5234702 (E.D.Va. 2008) granted Plaintiff's Motion to Remand to State Court because General Motors Corp. (GM) was the first defendant served and did not file a notice of removal within 30 days of service. The Court also found that GM was not fraudulently joined as a defendant nor was GM a nominal defendant.
Plaintiff Helen Carter Crockett (Crockett) filed a complaint in the Circuit Court for the City of Richmond as Guardian and Conservator on behalf of her son, naming as defendants General Motors Corp. (GM), Freedman Seating Co. (Freedman), and others. Freedman removed the action to federal court under 28 USC 1441(a) and all defendants but GM consented to the removal. Crockett filed a Motion to Remand to State Court pursuant to 28 USC 1447(c) because GM neither consented to Freedman's Notice of Removal, nor did it file its own Notice of Removal within the time period prescribed by 28 USC 1446(b). Freedman argued that GM's lack of consent should not bar removal because GM was improperly joined. At oral argument GM again objected to removal and suggested it was a nominal defendant because there was no possibility Crockett could establish a claim against GM. Freedman agreed that GM was a nominal defendant.
After examining prior case law, the Court found that: "(1) each defendant must file or join a notice of removal within thirty days of receiving process; (2) all defendants must consent to removal; (3) the failure of the first-served defendant to file a legally sufficient notice of removal within thirty days of receiving service generally precludes removal by later-served defendants." Crockett ex rel. Carter v. General Motors Corp., 2008 WL 5234702, *3 (E.D.Va. 2008). Applying these conclusions, the Court held that since GM was the first-served defendant and did not file a notice of removal within thirty days of being served, Plaintiff's Motion to Remand should be granted.
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