Removal, Consent, and the In-State Defendant
Northline LLC, a Maine company, sued Pine Equipment Inc., a Massachusetts corporation, and Harbor Repair LLC, a Maine company, in Maine Superior Court. The complaint alleges Pine sold Northline a used forklift and represented it had been serviced; Harbor, hired by Pine, performed the service negligently. Northline seeks $140,000 in contract and tort damages. Pine filed a notice of removal to the U.S. District Court for the District of Maine 28 days after service, asserting diversity because Northline and Pine are diverse and Harbor's joinder is fraudulent: Pine says it never authorized Harbor to service the forklift and Northline has no contract with Harbor. Harbor was served the same day but did not consent to removal and filed no answer. Northline moves to remand. The state complaint's tort count alleges Harbor 'acted at Pine's direction and for Pine's benefit' and seeks joint and several liability. Discovery has not begun. The federal court must decide removal and jurisdiction without an evidentiary hearing.
1. Was Pine's removal procedurally proper given Harbor's nonconsent and Maine citizenship?
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Pine's notice was filed 28 days after service, so it meets the 30-day deadline in 28 U.S.C. § 1446(b)(1) as to Pine. But removal is a joint act. Under § 1446(b)(2)(A), all defendants who have been properly joined and served must consent to removal. Harbor was served the same day and never consented; silence or failure to answer is not consent. Harbor is also a Maine citizen, and because it was properly joined and served, § 1441(b)(2)'s in-state defendant rule independently bars diversity removal. Pine's only escape is to show fraudulent joinder. That would require Pine to prove that Northline has no possibility of recovery against Harbor under Maine law. The complaint alleges Harbor was hired by Pine and negligently serviced the forklift at Pine's direction; that is a recognized tort theory, and Pine's contrary factual assertion cannot be resolved without an evidentiary hearing. The court must resolve disputed facts in Northline's favor. Therefore Harbor is not fraudulently joined, and the lack of consent plus the in-state defendant rule require remand.
2. How should the federal court assess Pine's fraudulent-joinder argument, and what burden applies?
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Fraudulent joinder is not a simple attack on the merits. Pine must show that there is no possibility Northline can establish a cause of action against Harbor in Maine state court. The court may consider the complaint and limited evidence, but it must resolve contested facts and ambiguities in Northline's favor; it may not decide the tort claim on the merits. Pine's assertion that it never authorized Harbor to service the forklift conflicts with the complaint's allegation that Harbor acted at Pine's direction. That conflict is exactly what an evidentiary hearing or summary-judgment motion would resolve, and the removal court should not resolve it on a fraudulent-joinder motion. Harbor's citizenship is Maine, which also makes removal especially suspect because the case began in Maine. Pine's burden is heavy and it has not met it on these facts. The motion to remand should be granted.