                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         APR 16 2004
                   UNITED STATES COURT OF APPEALS

                         FOR THE TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


    FARMLAND NATIONAL BEEF
    PACKING COMPANY, L.P.,

             Plaintiff-Appellee,
                                                      No. 04-3028
    v.                                         (D.C. No. 03-CV-1312-JTM)
                                                        (D. Kan.)
    STONE CONTAINER
    CORPORATION; JEFFERSON
    SMURFIT CORPORATION;
    SMURFIT-STONE CONTAINER
    CORPORATION; INTERNATIONAL
    PAPER COMPANY; GEORGIA
    PACIFIC CORPORATION;
    WEYERHAEUSER PAPER
    COMPANY; TEMPLE-INLAND
    INC.; GAYLORD CONTAINER
    CORPORATION; UNION CAMP
    CORPORATION; TENNECO INC.;
    TENNECO PACKAGING
    CORPORATION OF AMERICA;
    PACKAGING CORPORATION OF
    AMERICA,

             Defendants-Appellants.


                          ORDER AND JUDGMENT *



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before, KELLY, HENRY, and LUCERO, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff-appellee originally filed this antitrust suit against the twelve

defendant companies in state court. Defendants-appellants removed the case to

federal court, see generally 28 U.S.C. § 1446, but appellee believed that the

notice of removal was defective. Appellee filed a motion to remand, but outside

the thirty-day window allowed by § 1447(c). Appellee argued that the district

court lacked subject matter jurisdiction because there was no complete diversity

of citizenship, and that the notice of removal was procedurally defective because,

though signed by counsel, two company names were left off the signature block.

Appellants responded to appellee’s motion, and also filed a motion to correct their

clerical error in the notice of removal–but outside the thirty-day window allowed

for removal by § 1446(b). The district court strictly construed the defect against

appellants and remanded the case to state court for appellants’ failure to file their

unambiguous unanimous consent to removal within thirty days after service of the


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initial pleading. See Pet. for Writ of Mandamus, Tab F; § 1446(b). The district

court did not expressly rule on appellants’ motion to correct. See Pet. for Writ of

Mandamus, Tab F.

      Appellants now seek to overturn the district court’s order so that the case

can proceed in federal court. We granted their motion to expedite their appeal,

and appellee has responded. Appellee’s motion to dismiss also remains to be

decided.

      As we noted in our prior order, the initial question in any challenge to an

order remanding a removed case is whether the remand order is reviewable at all.

SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578, 580 (10th Cir.

1997). 28 U.S.C. § 1447(d) states that a remand order “is not reviewable on

appeal or otherwise,” except that a remand authorized by 28 U.S.C. § 1443 is

reviewable. The exception under § 1443 is not applicable here, so it appears at

first blush that review of the district court’s remand order is barred. However,

“the application of § 1447(d) is not as broad as its language suggests. Appellate

review is barred by § 1447(d) only when the district court remands on grounds

permitted by § 1447(c).” Dalrymple v. Grand River Dam Auth., 145 F.3d 1180,




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1184 (10th Cir. 1998) (citing Things Remembered, Inc. v. Petrarca, 516 U.S. 124,

127-28 (1995) and Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336,

345-46 (1976), overruled on other grounds, Quackenbush v. Allstate Ins. Co.,

517 U.S. 706, 714-15 (1996)).

      The district court did not mention § 1447(c) in its order. See Pet. for Writ

of Mandamus, Tab F. But this court held in Dalrymple that the mere omission of

a citation to § 1447(c) is not sufficient to allow review by this court, just as the

mere citation to § 1447(c) is not sufficient to bar review by this court.

Dalrymple, 145 F.3d at 1184. Rather, “[i]n order to evaluate the reviewability of

the district court’s remand order[], [this court] must independently review the

record to determine the actual grounds upon which the district court believed it

was empowered to remand.” Id.

      In this case, the district court relied on two legal points: first, that

§ 1446(b) provides that the notice of removal must be filed within thirty days

after the defendants received the initial pleading, and, second, that all of the

defendants must give their consent to removal within the thirty-day window.

Pet. for Writ of Mandamus, Tab F at 1-3. Relying on the fact that two defendant

company names were missing from the signature block on the notice of removal

(even though those two defendants were specifically identified in the first

paragraph of the notice of removal, and their citizenship specifically pleaded), the


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court concluded that it was ambiguous whether the two companies consented to

removal and construed the ambiguity against removal. The court found it

unnecessary to consider appellee’s other arguments.

      Appellants maintain that the district court’s order of remand is subject to

review in this court and should be reversed. They argue that: (1) the absence of

two defendant company names from the signature block is not a defect that can

justify a remand under § 1447(c); and (2) even if it is, appellee’s motion to

remand was untimely to raise any procedural defects in the notice of removal.

Appellants’ second argument necessarily implicates a third question they did not

raise: (3) whether the district court was authorized to remand based on the

alleged procedural defect outside the thirty-day window provided in § 1447(c)

even if appellee’s motion to remand was untimely. Appellee argues that the

appeal should be dismissed because: (1) appellants’ notice of removal was

procedurally defective; and (2) its motion to remand was timely or, even if it was

not, appellants waived any objection to its untimely motion to remand by not

raising that objection in the district court. Appellee also asserts in passing that

the district court could have remanded for lack of subject matter jurisdiction due

to lack of complete diversity of citizenship. We need not address this last

assertion because it is unsupported by any argument or authorities, and belied by




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the facts asserted in appellants’ notice of removal. See Phillips v. Calhoun, 956

F.2d 949, 953-54 (10th Cir. 1992).

      Upon consideration, appellee’s motion to dismiss is denied. Under the

circumstances of this case, our authority to review the district court’s remand

order is intertwined with the result of our review. Appellee’s motion to remand

was untimely to raise any procedural defects under 28 U.S.C. § 1447(c), and the

district court therefore was not authorized under § 1447(c) to remand based on the

procedural defect of lack of unanimous consent to removal. As a result, we have

jurisdiction to review the remand order and, for the same reason, we reverse the

district court and direct it to vacate its remand order.


                                       Analysis

      This court has held that for a paper to fall within the removal statutes, it

must be unambiguous. Cf. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1035-36

(10th Cir. 1998) (holding that ambiguous initial pleading was not “unequivocal

notice of the right to remove” and did not trigger time for defendants to file

notice of removal under § 1446(b)). It is not necessary for us to decide whether

the omission of the name of a defendant on a signature block in these

circumstances renders the notice ambiguous, let alone constitutes a procedural

defect, because appellants’ second argument has merit–the untimely filing of



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appellees’ motion to remand left the district court without authority under

§ 1447(c) to remand based on that ostensible procedural defect. 1

      Our examination of the timing of appellee’s motion to remand begins with

the overriding principle that because federal removal jurisdiction is statutory in

nature, it is strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.

100, 108-09 (1941). “[A]ll doubts are to be resolved against removal.” Fajen v.

Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). It is true that all of

the defendants must consent to removal. Wisc. Dep’t of Corr. v. Schacht,

524 U.S. 381, 393 (1998) (Kennedy, J., concurring); Cornwall v. Robinson,

654 F.2d 685, 686 (10th Cir. 1981); §§ 1441(a), 1446(a). But the lack of

unanimous consent is a procedural defect, not a jurisdictional defect. SBKC Serv.

Corp., 105 F.3d at 580; Sheet Metal Workers Int’l Ass’n v. Seay, 693 F.2d 1000,

1005 n.8 (10th Cir. 1982). Under § 1447(c), “[a] motion to remand the case on

the basis of any defect other than lack of subject matter jurisdiction must be made

within 30 days after the filing of the notice of removal under section 1446(a).”




1
       Appellee argues that appellants waived their objection to its untimely
motion to remand by not raising the objection in the district court. We exercise
our discretion to consider appellants’ challenge to the timeliness of appellee’s
motion to remand, even though appellants did not raise this argument in the
district court. See Singleton v. Wulff, 428 U.S. 106, 120-21 (1976). The issue is
one of law, not of fact; the record is adequate for our review; and the resolution
of the question is not in doubt.

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Section 1446(a) states that “defendants desiring to remove any civil action . . .

shall file in the district court of the United States . . . a notice of removal.”

      Appellee argues that the thirty-day period for its motion to remand started

to run when a copy of the notice of removal was filed in the state court. See

§ 1446(d). But that argument contravenes the plain language of § 1447(c). The

time began to run when appellants filed their notice of removal in the district

court. Therefore, appellee’s motion to remand was untimely. Appellants’ notice

of removal was docketed in federal court on Friday, August 29, 2003, and

appellee filed its motion to remand on Tuesday, September 30. It was due on

Monday, September 29 (because the thirtieth day fell on Sunday). Because

appellee’s motion to remand was not filed within thirty days after the notice of

removal was filed in the district court, the district court lacked discretion under

§ 1447(c) to remand based on a procedural defect. See Loftis v. United Parcel

Serv., Inc., 342 F.3d 509, 516-17 (6th Cir. 2003); In re Bethesda Mem. Hosp.,

Inc., 123 F.3d 1407, 1410 (11th Cir. 1997); Hamilton v. Aetna Life & Cas. Co.,

5 F.3d 642, 643-44 (2d Cir. 1993) (per curiam); In re Shell Oil Co., 932 F.2d

1523, 1528-29 (5th Cir. 1991). All of the circuit courts to have addressed the

question have held that the thirty-day period binds the district court as well as the

party opposing removal. See Loftis, 342 F.3d at 516-17; Bethesda Mem. Hosp.,

123 F.3d at 1410; In re Continental Cas. Co., 29 F.3d 292, 294-95 (7th Cir. 1994);


                                            8
Hamilton, 5 F.3d at 643-44; Maniar v. FDIC, 979 F.2d 782, 784-85 (9th Cir.

1992); FDIC v. Loyd, 955 F.2d 316, 322 (5th Cir. 1992); Air-Shields, Inc. v.

Fullam, 891 F.2d 63, 65 (3d Cir. 1989). As a result, even if the missing company

names on the notice of removal originally put unanimous consent to removal in

doubt, the basis of the district court’s remand in this case is a procedural defect

and the defect was untimely raised. Therefore, the district court’s action was not

authorized by § 1447(c), review in this court is not barred by § 1447(d), and the

district court’s remand order must be vacated. We need not decide whether the

district court should have acknowledged appellants’ motion to correct their notice

of removal.

      Appellee’s motion to dismiss is DENIED. The district court’s remand

order is REVERSED and the district court is directed to vacate it.



                                                     ENTERED FOR THE COURT
                                                     PER CURIAM




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