The Rule of Unanimity: Exceptions, 30-Day Clock, and Remand

When a civil case is removed from state court to federal court, every defendant who has been properly joined and served must affirmatively consent. That is the rule of unanimity in removal, codified at 28 U.S.C. § 1446(b)(2)(A), and a single holdout defeats the removal and sends the case back to the plaintiff’s chosen forum.¹ The rule applies whether removal is based on federal-question or diversity jurisdiction, and botching it is one of the fastest ways to end up paying the other side’s attorney fees.

What Counts as Consent

The statute requires that “all defendants who have been properly joined and served must join in or consent to the removal of the action.”¹ Consent has to be affirmative and in writing. Silence is not agreement. Failing to object is not agreement. Each served defendant has to say so, either by signing the notice of removal or by filing a separate written joinder.

Courts have been pragmatic about the form. There is no rigid requirement that each co-defendant file a stand-alone document. The removing defendant can state the co-defendants’ consent inside the notice of removal, as long as the removing party actually had authority to speak for them. If a co-defendant later disputes that representation, Rule 11 sanctions sit in the background as the enforcement tool for false statements. Separate joinders eliminate any ambiguity, and many defense lawyers file them as a matter of habit.

For a corporate defendant, the statute does not identify which officer or employee has to authorize the consent. Outside litigation counsel retained to defend the suit can consent for the entity, and so can any officer with authority over the litigation. What matters is that the corporate party has agreed, not that any particular person signed.

Which Defendants Don’t Need to Consent

The unanimity requirement reaches only defendants who have been “properly joined and served.” That phrase builds in several exclusions.

Unserved defendants. A defendant who has not been formally served at the time the notice of removal is filed does not need to consent.¹
Nominal parties. Defendants named in the suit who have no real stake in the outcome, such as a stakeholder in an interpleader action who claims no interest in the disputed funds, do not count.
Fraudulently joined defendants. If the plaintiff named a defendant solely to defeat diversity, and there is no reasonable basis for a claim against that defendant, the federal court can disregard that party for removal purposes. The removing side carries a heavy burden to prove this, but when it succeeds the sham defendant’s consent is irrelevant.
Defendants facing only non-removable claims. Some claims are barred from federal court by statute, including state-law workers’ compensation claims, Federal Employers’ Liability Act claims, and Violence Against Women Act actions. A defendant named only on one of those claims does not count toward unanimity.²

Spotting these exclusions early matters. Chasing a signature from a nominal party or an unserved defendant burns days off a tight 30-day window, and courts will not extend the deadline because you went looking in the wrong places.

When One Defendant Can Remove Alone

Congress has written specific situations into the removal statutes where a single defendant can act without the others.

Class Actions Under CAFA

The Class Action Fairness Act rewrote the rules for qualifying class actions. Under 28 U.S.C. § 1453(b), such an action “may be removed by any defendant without the consent of all defendants.”³ CAFA also lifts the one-year deadline on diversity-based removals and eliminates the forum-defendant bar. Any one defendant can pull the trigger.

Federal Officer Removal

When a federal officer, or someone acting under a federal officer’s direction, is sued in state court for conduct connected to official duties, that person can remove under 28 U.S.C. § 1442(a) without the consent of co-defendants.⁴ Claims against non-federal co-defendants typically stay in state court unless those co-defendants independently qualify for removal.

Mixed Federal and State Claims

When a lawsuit bundles a federal claim with state-law claims that fall outside federal jurisdiction, only the defendants facing the federal claim need to consent. The federal court then severs the non-removable claims and sends them back.⁵ Defendants tied exclusively to state-law claims neither need to consent nor can block the federal portion from moving.

The 30-Day Clock

Each defendant has 30 days after being served with the initial pleading or summons to file a notice of removal.¹ The clock runs separately for each defendant, starting at the moment that defendant receives service. Thirty days means thirty calendar days; weekends and holidays count. Under Federal Rule of Civil Procedure 6(a)(1), if the final day lands on a Saturday, Sunday, or legal holiday, the deadline moves to the next business day, and the day of service itself is excluded from the count.⁶

When defendants are served on different dates, the first-served defendant’s 30-day window may close before a co-defendant even enters the case. The statute addresses this. A later-served defendant can file a new notice of removal within their own 30-day period, and any earlier-served defendant can consent to that removal even if the earlier defendant’s own deadline has already run.¹ A defendant who initially missed the window can still join in if a later-served co-defendant takes the lead.

Diversity cases carry an outer limit on top of the 30-day rule: removal cannot happen more than one year after the lawsuit was originally filed. The only exception is bad faith by the plaintiff, such as deliberately concealing the amount in controversy to prevent removal.¹ The one-year cap does not apply to federal-question cases or to class actions removed under CAFA.³

How a Defendant Loses the Right to Remove

A defendant can waive removal by doing too much in state court first. Courts ask whether the defendant took substantial actions in state court that signal a willingness to litigate there. Filing an answer alone usually does not cross the line. Filing a counterclaim, moving for summary judgment, seeking an injunction, or actively participating in discovery and scheduling can lock the defendant into the state forum permanently.

The test is whether the defendant’s conduct was clear and unequivocal in demonstrating intent to submit to state court jurisdiction. Purely defensive moves required by state rules, such as responding to motions to avoid default, generally do not waive the right. The line between mandatory defense and voluntary litigation is thinner than it looks. Filing for removal immediately on service, and sorting out strategy afterward, is safer than testing the water first.

What Happens When Unanimity Fails

A removal missing the consent of a properly served defendant has a procedural defect, and the plaintiff can exploit it.

Motion to Remand

The plaintiff has 30 days after the notice of removal is filed to move for remand based on the unanimity defect.⁷ If the plaintiff misses that window, the procedural defect may be waived. This is different from a lack of subject-matter jurisdiction, which the court can raise on its own at any time. A missing signature is fixable if no one complains in time; a case that never belonged in federal court goes back regardless of deadlines.

Costs and Fees

When a case is remanded, the federal court may order the removing defendant to pay the plaintiff’s “just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”⁷ A fee award is not automatic, but filing a removal petition without lining up every required consent is exactly the kind of avoidable defect that invites one. The costs include the plaintiff’s work researching the defect, drafting the remand motion, and attending the hearing.

Partial Remand

In cases involving both federal and state-law claims, remand does not have to be all or nothing. The federal court must sever claims that fall outside its original or supplemental jurisdiction and send only those back to state court, keeping the federal claims.⁵ A partial remand is possible when the case genuinely mixes removable and non-removable claims, and defendants tied only to the non-removable claims stay out of the unanimity count for the federal portion.

1
Office of the Law Revision Counsel. 28 USC 1446 – Procedure for Removal of Civil Actions
2
Office of the Law Revision Counsel. 28 USC 1445 – Nonremovable Actions
3
Office of the Law Revision Counsel. 28 USC 1453 – Removal of Class Actions
4
Office of the Law Revision Counsel. 28 US Code 1442 – Federal Officers or Agencies Sued or Prosecuted
5
Office of the Law Revision Counsel. 28 USC 1441 – Removal of Civil Actions
6
Legal Information Institute. Federal Rules of Civil Procedure Rule 6 – Computing and Extending Time; Time for Motion Papers
7
Office of the Law Revision Counsel. 28 USC 1447 – Procedure After Removal Generally