On May 7, 2015, in Griffioen v. Cedar Rapids and Iowa City Railway Company, a case of first impression for the US Court of Appeals for the Eighth Circuit, the court clarified that a defendant's timely removal notice indicating consent on behalf of a co-defendant, signed and certified under FRCP 11 and followed by the filing of a notice of consent from the co-defendant itself, sufficiently establishes that co-defendant's consent to removal (No. 13-3170, (8th Cir. May 7, 2015)).

The plaintiffs, Mark Griffioen and various individuals, filed a putative class action in Iowa state court seeking recovery for property damage that occurred during the June 2008 flooding of the Cedar River. The plaintiffs alleged negligence and strict liability against Union Pacific, Cedar Rapids and Iowa City Railway Co. and Alliant Energy Corp. (collectively CRANDIC), and ten additional defendants (the Stickle Defendants) for, among other things, failing to properly build and maintain railway bridges over the Cedar River that caused or exacerbated the flood.

In July 2013, Union Pacific filed a notice of removal based on federal question jurisdiction arising from complete preemption created by the Federal Railway Safety Act. The notice stated that attorneys for Union Pacific contacted attorneys for the other co-defendants in the matter, and there was no objection to removal. Union Pacific also included a local rule certification that stated the co-defendants had given their consent to the removal of the action.

CRANDIC later filed its notice of consent to removal. However, the Stickle Defendants did not file a notice of consent to removal until more than 30 days after Union Pacific was served with the complaint. The plaintiffs filed a motion to remand, arguing among other things, that removal was improper because not all defendants had timely consented. The plaintiffs contended that the Stickle Defendants' consent was invalid because they did not sign the notice of removal or file a written indication of their consent within 30 days of the date of service on the removing defendant as required under 28 U.S.C. § 1446.

The Eighth Circuit held that the consent to removal was sufficient. The court acknowledged that removal based on a federal question requires the unanimous consent of all defendants. However, circuit courts are split on the form that the consent must take. Noting that it had not directly addressed this issue before, the Eighth Circuit held that the unanimity requirement could be met when the removing defendant gives notice of its co-defendants' consent where the removing defendant had authority to indicate consent on their behalf and the notice of removal is timely.

The court declined to adopt a hard-line requirement in light of the 2011 amendments to § 1446 that did not describe the form or time frame for consent when multiple defendants are involved. Additionally, the court reasoned that the potential for Rule 11 sanctions and a co-defendant's opportunity to alert the court to false information in the defendant's notice prevent removing defendants from making false representations. The co-defendant's filing of its indication of consent also mitigates any concern that the co-defendant has not authorized removal.