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Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 1 of 17 PageID #: 122

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

FILED
SEP 1 9 2013
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CIV 13-4057-RAL

OPINION AND ORDER
GRANTING MOTION

TO REMAND

PUSH PEDAL PULL, INC., formerly
knows as The R.D. Rogers Company,

Plaintiff,

vs.

KENT CASPERSON, Individually, and
2ND WIND EXERCISE EQUIPMENT,
INC.,

Defendants.

I. INTRODUCTION

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Plaintiff Push Pedal Pull, Inc. ("Push Pedal Pull") sued Defendants Kent Casperson

("Casperson") and 2nd Wind Exercise Equipment, Inc. ("2nd Wind") (collectively, "Defendants")

through a Complaint dated April 25, 2013, Doc. I-I, and filed in Circuit Court of Minnehaha

County, South Dakota. 2nd Wind filed its Notice of Removal, Doc. I, with this Court on May 24,

2013. Push Pedal Pull filed a Motion to Remand to State Court, Doc. 6, on June 12,2013, which

Defendants opposed. Docs. 9-10. For the reasons stated below, Plaintiff's Motion to Remand is

granted.

II. FACTS

Push Pedal Pull is a South Dakota corporation that sells and services new and used exercise

equipment in its retail stores throughout the upper Midwest. Doc. 1-1 at ~~ 1, 2. 2nd Wind is a

Minnesota Corporation that sells, trades, services, and refurbishes new and used exercise equipment

at the wholesale level and through retail stores in the upper Midwest. Doc. 9 at 1. Casperson is a

resident of Hennepin County, Minnesota. Doc. 5 at ~ 6; Doc. 9 at 1.

Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 2 of 17 PageID #: 123

Casperson was Director of Service for Push Pedal Pull and in that capacity managed Push

Pedal Pull's overall service operations. Doc. 5 at ~~ 3,9; Doc. 1-1 at ~~ 10-11. On January 15,

2001, Casperson signed an Agreement Concerning Trade Secrets and Non-Competition ("the

Agreement") with Push Pedal Pull. Doc. 1-1 at 21; Doc. 5 at ~ 12. Section 2 of the Agreement

restricted Casperson for a period oftwo years from his date oftermination ofemployment with Push

Pedal Pull from working for a competing business within 100 miles of any Push Pedal Pull retail

store. Doc. 1-1 at 22. The Agreement also had provisions restricting Casperson's use ofconfidential

trade secrets. Doc. 1-1 at 21. Section 4 of the Agreement contained a forum selection clause that

provided "[t]he parties agree that this contract is governed by the laws ofthe State of South Dakota

... and that the state circuit court situated in Minnehaha County, South Dakota, shall be the

exclusive jurisdiction of any disputes relating to this Agreement." Doc. 1-1 at 22.

In March of 2013, Casperson resigned from Push Pedal Pull and began working for 2nd

Wind. Doc. 4 at ~ 10; Doc. 5 at ~ 23. 2nd Wind knew of the Agreement and assigned Casperson

to its Wisconsin office in an attempt to comply with the Agreement's restrictions. Doc. 4 at ~ 11.

Push Pedal Pull alleges that Casperson is working in breach ofthe Agreement. Doc. 1-1 ~ 40. Push

Pedal Pull also alleges that before his resignation, Casperson accessed and copied various documents

containing confidential information and that 2nd Wind encouraged him to do so. Doc. 1-1 at ~~ 24­

35. Defendants deny these allegations. Doc. 4 at ~ 9; Doc. 5 at ~ 1.

In total, Push Pedal Pull alleges eight counts against either Casperson, 2nd Wind, or both:

Count One alleges misappropriation of trade secrets in violation of Minnesota and South Dakota

state statutes by Casperson and 2nd Wind and seeks injunctive relief and damages in excess of

$50,000.00; Count Two alleges breach of fiduciary duty against Casperson and seeks injunctive

relief and damages in excess of $50,000.00; Count Three alleges breach of contract against

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Casperson and seeks injunctive relief and damages in excess of $50,000.00; Count Four alleges

unjust enrichment against both Casperson and 2nd Wind and seeks in excess of$50,000.00; Count

Five alleges violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq., against

Casperson and seeks in excess of $5,000.00; Count Six alleges tortious interference with contract

against 2nd Wind and seeks in excess of$50,000.00; Count Seven alleges that 2nd Wind aided and

abetted Casperson in breaching his fiduciary duty to Push Pedal Pull and seeks in excess of

$50,000.00; Count Eight alleges unfair competition and seeks in excess of$50,000.00. See Doc. 1­

1. In the Complaint's prayer for relief, Push Pedal Pull's monetary requests are an "award ... in

excess ofFifty Thousand Dollars ($50,000.00) against both Defendants" plus punitive damages and

costs. Doc. 1-1 at 20.

Push Pedal Pull's Summons and Complaint venued in Minnehaha County Circuit Court was

served on Casperson on April 26, 2013. Doc. 10 at 1; Doc. 7 at 2. 2nd Wind received service ofthe

Summons and Complaint a few days after Casperson on April 29, 2013. Doc. 9 at 2; Doc. 7 at 2.

On May 24, 2013, 2nd Wind timely filed its Notice ofRemoval, Doc. 1, with this Court within thirty

days ofwhen 2nd Wind had been served with the Summons and Complaint. The Notice ofRemoval

claimed that this Court has jurisdiction based on diversity jurisdiction and that "[ r]emoval is proper

under 28 U .S.C. §[] 1441 as this is a civil action between citizens ofdifferent states and the amount

in controversy exceeds $50,000.00, I exclusive of interests and costs." Doc. 1 at ~ 8. Casperson did

not join 2nd Wind's Notice of Removal, 2nd Wind did not attach any additional documents

demonstrating Casperson's consent to removal at the time the Notice ofRemoval was filed, and 2nd

Wind's Notice of Removal was silent on Casperson's consent. Doc. 1.

I The jurisdictional threshold for diversity jurisdiction cases of course is $75,000.00 under 28

U.S.C. § 1332.

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On May 30, 2013, 2nd Wind filed its Answer, Doc. 4. The next day on May 31, 2013,

Casperson filed his "Separate Answer, Affirmative Defenses and Jury Demand," Doc. 5.

Casperson's Answer was silent on removal, but contained a jury demand. Doc. 5. In his Answer,

Casperson addressed the Complaint's allegation that jurisdiction and venue are proper in South

Dakota state court pursuant to the Agreement by stating that Push Pedal Pull's jurisdictional

allegations are "legal conclusions for which no response is required, but Casperson admits he is a

party to the agreement dated January 15,2001." Doc. 5 at ~ 8.

On June 12,2013, Push Pedal Pull filed its Motion to Remand to State Court, Doc. 6. On

July 2,2013, Casperson filed a Notice of Consent to Removal, Doc. 8, which stated:

Defendant Kent Casperson, who was the earlier-served defendant of
the two defendants in this case, hereby provides his formal written
consent to Defendant 2nd Wind Exercise Equipment, Inc.' s removal
ofthis action from South Dakota state court to this Court. Defendant
Kent Casperson provides this consent pursuant to 28 U.S.C. §
1446(b )(2)( c) and it is intended to supplement his earlier consent to
the removal evidenced by the filing with this Court on May 31,
2013, of his Separate Answer and Jury Demand. Neither Plaintiff
nor Defendant 2nd Wind Exercise Equipment, Inc. had invoked the
right to trial by jury in this Court before Defendant Kent Casperson
did so on May 31, 2013.

Doc. 8. Defendants opposed Plaintiff's Motion to Remand, Docs. 9, 10.2

III. DISCUSSION

The party seeking removal and opposing a motion to remand bears the burden ofestablishing

federal jurisdiction. In re Bus. Men's Assurance Co. ofAm., 992 Fold 181, 183 (8th Cir. 1993) (per

2 Casperson's arguments in his Memorandum in Opposition, Doc. 10, were similar to the
arguments made in 2nd Wind's Memorandum in Opposition, Doc. 9. Casperson addressed Push
Pedal Pull's first two arguments and then joined in 2nd Wind's remaining arguments. Doc. 10.
Because the arguments are substantially similar, this Court will not differentiate by name which
Defendants raise which arguments.

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curiam). Removal statutes are strictly construed and doubts are resolved in favor ofremand. Dahl

v. RJ. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007).

A. The Rule of Unanimity

Defendants argue that "there is no deadline for Casperson to consent within 30 days from

the time the last Defendant [2nd Wind] was served." Doc. 10 at 4 (internal quotation marks and

citations omitted); see also Doc. 9 at 4. Defendants also argue that Casperson's Answer evinces his

consent and satisfies the unanimity requirement as does his later-filed Notice ofConsent. Doc. 10

at 4; Doc. 9 at 4.

Removal is a statutory right outlined in 28 U.S.C. § 1441 and governed by § 1446.

Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 932 (8th Cir. 2012). "A defendant or

defendants desiring to remove any civil action from a State court shall file in the district court ofthe

United States for the district and division within which such action is pending a notice of removal

signed pursuant to Rule 11 ofthe Federal Rules ofCivil Procedure and containing a short and plain

statement of the grounds for removal, together with a copy of all process, pleadings, and orders

served upon such defendant or defendants in such action." 28 U.S.C. § 1446(a). The notice of

removal "shall be filed within 30 days" from the time the defendant is served with the complaint.

28 U.S.C. § 1446(b)( I). Section 1446(b )(2)(C) provides that "[iJfdefendants are served at different

times, and a later-served defendant files a notice of removal, any earlier-served defendant may

consent to the removal even though that earlier-served defendant did not previously initiate or

consent to removaJ."3

3 Congress amended 28 U.S.C. § 1446(b) on December 7, 2011. Patel v. Trivedi, No.

4:1O-CV-04195, 2012 WL 6628848, at *1 n.l (W.D. Ark. Dec. 19,2012). Before the recodification,
a split existed in the circuit courts ofappeals concerning whether a later-served defendant was
permitted the same thirty day window to remove a case as is given to the first-served defendant. See

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"[O]rdinarily all defendants must join in a notice ofremoval or the case will be remanded"

pursuant to the rule ofunanimity.4 Marano Enter. ofKansas v. Z-Teca Rest .. L.P., 254 F.3d 753,755

n.2 (8th Cir. 200 I); see also Pritchett v. Cottrell. Inc., 512 F.3d 1057, 1062 (8th Cir. 2008) ("[T]he

failure ofone defendant to consent renders the removal defective ...."). The unanimity requirement

"serves important interests-it prevents duplicitive litigation and bars one defendant from imposing

his forum of choice on co-defendants." Christiansen, 674 F.3d at 933. While the unanimity

requirement should not be applied in "a 'hypertechnical and unrealistic manner,'" its application

ought not be so elastic that it is "strip[ped] ... ofits utility." Id. (quoting Bradley v. Maryland Cas.

Co., 382 F.2d 415, 419 (8th Cir. 1967».

'"Where there are multiple defendants, all must join in a [notice] to remove within thirty

days ofservice.'" Christiansen, 674 F.3d at 932 (quoting Thorn v. Amalgamated Transit Union, 305

F.3d 826, 833 (8th Cir. 2002»; see also Marano, 254 F.3d at 757 (holding that later-served

defendants can file notice of removal within thirty days of service upon them provided they do so

in that time period "with the unanimous consent oftheirco-defendants"); Pietrangelo v. Alvas Corp.,

686 F.3d 62, 66 (2nd Cir. 2012) (per curiam) ("[A]ll defendants [must] consent to removal within

the statutory thirty-day period, a requirement known as the 'rule ofunanimity. "') (internal quotation

marks omitted); Dube v. Wyeth LLC, No.4: 12-CV-1912, 2013 WL 607834, at * 5 (E.D. Mo. Feb.

19, 2013) (stating that later served defendants have thirty days to fi Ie their notice of removal and the

Marano Enter. of Kansas v. Z-Teca Rest .. L.P., 254 F.3d 753, 754-56 (8th Cir. 2001). Congress's
amendment brought the statute in line with the majority "later served defendant rule" that the Eighth
Circuit previously had adopted. Patel, 2012 WL 6628848, at *1 n.l. The amendment did not affect
the well-settled thirty-day deadline for removal.

4 Congress created exceptions to the general rule that all defendants must join in a notice of
removal in order for it to be effective, but none of those exceptions are applicable in this case. See
Jones v. Kremer, 28 F. Supp. 2d 1112, 1113 n.2 (D. Minn. 1998)

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same thirty days to "persuade earlier served defendants to join in their notice ofremoval"); Noel v.

Laclede Gas Co., 612 F. Supp. 2d 1051,1055 (E.D. Mo. 2009) (,"Removal jurisdiction requires all

defendants to join in the removal petition or consent to removal within thirty days of service.'"

(quoting Amteco, Inc. v. BWAY Corp., 241 F. Supp. 2d 1028, 1029 (E.D. Mo. 2003»); Unicorn

Sys., Inc. v. Nat'l Louis Univ., 262 F. Supp. 2d 638,640 (E.D. Va. 2003) ("Courts have uniformly

construed [28 U.S.C. § 1446(a) and (b)] as requiring all defendants, who may properly do so, to join

in or otherwise consent to the removal notice."). Under Eighth Circuit precedent, "it is not necessary

for all defendants to actually sign the notice ofremoval so long as there is 'some timely filed written

indication from each served defendant . . . that the defendant has actually consented to the

removal.'" Christiansen, 674 F.3d at 932 (quoting Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062

(8th Cir. 2008».

Although the manner in which a non-removing co-defendant may satisfy the unanimity

requirement can vary, the requirement that all properly served defendants provide their consent

within the thirty day removal period to prevent remand is settled. See e.g., Christiansen, 674 F.3d

at 932 (stating defendants must consent within thirty days); Bedminster Fin. Grp., Ltd. v. Umami

Sustainable Seafood, Inc., No. 12-CIV-5557, 2013 WL 1234958, at *7 (S.D.N.Y. Mar. 26, 2013)

(holding that "clear and settled precedent" required remand when non-removing defendant did not

file written notification until after the statutory thirty day removal period had ran); Byrd v.

Auto-Owners Ins. Co., No. 4:08-CV-1368S, 2008 WL 5071105, at *1-2 (E.D. Mo. Nov. 24, 2008)

(remanding when non-removing co-defendant did not join in removal, filed its answer four days

outside the thirty day removal period, and filed its notice ofconsent twenty days outside the removal

window and on the same day as plaintiff's motion to remand); Morales v. Safeway Stores. Inc., No.

C-01-3934, 2002 WL 202367, at *2 (N.D. Cal. Jan. 30, 2002) (holding that a co-defendant's answer

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filed four days after thirty day removal period did not satisfy unanimity requirement); Januszka v.

Kemper Ins. Co., No. 94-2242,1994 WL 236463, at *1-2 (E.D. Pa. May 26,1994) (remanding case

when answer was filed one day after thirty day removal period expired); cf. Pietrangelo, 686 F.3d

at 66 (holding remand not appropriate when non-removing defendants submitted letters to the court

addressing removal within the "thirty day removal period"); Noel, 612 F. Supp. 2d at 1056 (holding

remand not required when non-removing co-defendant filed a motion to dismiss and accompanying

memorandum addressing the propriety offederal court jurisdiction within the thirty day time period).

Here, Casperson was served April 26, 2013, and 2nd Wind was served April 29, 2013. Casperson

had until May 26,2013, to file his own notice ofremoval and until May 29,2013, to file some timely

written indication that he was consenting to 2nd Wind's Notice ofRemoval. Both documents which

Defendants argue evince Casperson's consent were filed outside the thirty day removal period-his

Answer was filed on May 31, 2013, and his Notice ofConsent was filed more than a month later on

July 2, 2013. Casperson failed to "join in [2nd Wind's notice] of consent within thirty days of

service," and remand is required even without considering the substance of his Answer.

Christiansen, 674 F.3d at 933 (internal quotation marks and citation omitted). The benefits derived

from the unanimity requirement-particularly prompt resolution ofthe proper forum and the ability

to prevent duplicitive litigation-would be undermined by a contrary holding that requires a

removing co-defendant comply with the statutory thirty day removal limit, but does not hold non­

removing co-defendants to the same requirement.

Defendants' argument that Casperson need not consent within the thirty day removal period

so long as his Answer is "timely" has no support in precedent from the United States Court of

Appeals for the Eighth Circuit. The Eighth Circuit has found a defendant evinced his consent and

satisfied the unanimity requirement in various ways.

In each of these cases, however, the

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communication evincing consent not only was filed within the thirty day removal period, but also

addressed removal or the propriety of federal jurisdiction. See Christiansen, 674 F.3d at 933

(holding unanimity requirement satisfied by language in a co-defendant's motion to dismiss

addressing removal filed within the thirty day removal period); Pritchett, 512 F.3d at 1062 (holding

that "each defendant need not necessarily sign the notice of removal" so long as there is '''some

timely filed written indication from each served defendant' ... indicating that the defendant 'has

actually consented' to the removal" and finding requirement satisfied by the co-defendant's consent

form attached as an exhibit to the timely filed notice of removal (quoting Getty Oil Corp. v. Ins. Co.

ofN.Am.,841 F.2d 1254, 1262n.11 (5thCir.1988)));Hortonv.Conklin,431 F.3d602,606(2005)

(noting that a motion to remove filed within thirty day removal period was "arguably defective from

the outset due to [the removing defendant's] failure to join all defendants as required by our court's

interpretation of 28 U.S.C. § 1446)"; Thorn, 305 F.3d at 833 (upholding remand when the co­

defendant failed to join the notice of removal within thirty days); Marano, 254 F.3d at 757 (finding

unanimity requirement satisfied when later served defendants filed a notice of removal within thirty

days ofservice "with the unanimous consent oftheir co-defendants"). Thus, Defendants' argument

that Casperson's Answer filed after the thirty day removal period nevertheless evinces his consent

because it is "timely" is incorrect.

Casperson's Answer, filed two days beyond the thirty-day limit, made a jury demand, but

otherwise was silent on removal and on the propriety ofthis Court's jurisdiction. Courts are divided

on whether and under what circumstances a non-removing defendant's filing of an answer is

sufficient to evince his consent and satisfy the unanimity requirement. Esposito v. Home Depot

U.S.A., Inc., 590 FJd 72, 76 (lst Cir. 2009). Some courts have found that an answer filed within

the thirty day removal period that expressed consent to removal may satisfy the unanimity

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requirement. See e.g., Harper v. AutoAlliance Jnt'l, Jnc., 392 F.3d 195,202 (6th Cir. 2004). Other

courts have held that an answer filed within the thirty day removal period that does not explicitly

consent to removal does not satisfy the unanimity requirement. See Local Union No. 172 Int'l Ass'n

of Bridge, Structural Ornamental & Reinforcing Ironworkers v. P.I. Dick, Inc., 253 F. Supp. 2d

1022,1025 (S.D. Ohio 2003); Prod. Stamping Corp. v. Maryland Cas. Co., 829 F. Supp. 1074, 1077

(E.D. Wis. 1993) (holding that "the mere filing ofan answer" within thirty day removal period does

not satisfy unanimity requirement and that the answer's denial ofthe complaint's state court venue

allegation does not evince sufficiently a co-defendant's consent to removal). Notwithstanding this

authority, there is one case that supports Defendants' argument; in Glover v. W.R. Grace &

Company, Inc., 773 F. Supp. 964, 965 (E.D. Tex. 1991), the United States District Court for the

District of Texas allowed a co-defendant's answer filed outside the thirty day removal period to

evince the co-defendant' s consent to removal and satisfy the unanimity requirement. See id. Other

courts have criticized Glover. See lanuszka, 1994 WL 236463, at *1-2 (disagreeing with Glover and

holding unanimity requirement not met by answer filed one day after removal period closed); Prod.

Stamping, 829 F. Supp. at 1 077 (disagreeing with Glover and holding that the filing of an answer

within the thirty day removal period does not satisfy the unanimity requirement). Two years after

it decided Glover, the same court noted that Glover was "probably wrongly decided" in light of

subsequent circuit court of appeals decisions. Thompson v. Louisville Ladder Corp., 835 F. Supp.

336, 340 (E.D. Tex. 1993).

The Eighth Circuit has not addressed whether an answer, let alone one that is filed outside

of the thirty day removal period and is silent on removal, may satisfy the unanimity requirement.

In Christiansen, the Eighth Circuit determined that the defendants satisfied the unanimity

requirement with a timely motion to dismiss that accepted federal jurisdiction as "appropriate." 674

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F.3d at 933. The Eighth Circuit characterized Christiansen as "a very close case" whose precedential

value was "limited to the specific facts ofthis case." Id. The Eighth Circuit in Christiansen declined

to express an opinion on whether the unanimity requirement could be satisfied "by the mere filing

of motion to dismiss (silent on removal) within thirty days of service ...." Id. (emphasis added).

Here, Casperson's Answer is less indicative of his consent to removal than the pleadings

were in Christiansen. Id. Casperson's Answer of course was filed after the thirty day removal

period, which is enough to find the unanimity requirement has not been met. Casperson also filed

an answer, a pleading not necessarily indicative ofhis unequivocal consent to jurisdiction. Unicorn

Sys., 262 F. Supp. 2d at 642 ("[TJhe filing ofan answer is an 'ambiguous act' that is not necessarily

consistent with consent to removal.") (citation omitted). The Christiansen case does not support

finding that an answer filed outside the removal period which is silent on removal would satisfy the

unanimity requirement.

Defendants next argue that Casperson's later-filed Notice of Consent to Removal evinces

his consent to removal. His Notice of Consent to Removal certainly demonstrates his consent, but

it came well beyond the removal period. The Eighth Circuit has declined so far to address whether

the unanimity requirement may be satisfied by "the filing ofa curative consent to removal after the

thirty-day period." Christiansen, 674 F.3d at 933. Some courts conclude that "where a defendant

timely seeks to join in a removal, but the defendant's notice of removal is defective, the defendant

may cure the defect after the 30 day removal period." Christiansen v. W. Branch Cmty. Sch. Dist.,

No. 1O-CV-131, 2011 WL 1230274, at * 6 (N.D. Iowa Mar. 28,2011) affd, 674 F.3d 927 (8th Cir.

2012); see also Harper, 392 F.3d at 202 (holding that even ifinitial timely consent was ineffective,

co-defendant cured "any purported defect" by opposing the motion to remand). Many courts,

however, do not allow an untimely notice of consent to cure the defendant's failure to timely

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consent. See Bedminster, 2013 WL 1234958, at * 7 (S.D. N.Y. Mar. 26, 2013) (criticizing an older

holding that allowed an untimely notice of consent to satisfy the unanimity requirement as "an

unduly creative view ofdistrict court authority ... to cure a lack ofconsent ..." and collecting cases

holding the same); Killen v. Atl. Paper & Foil, LLC, No. 07-1600, 2007 WL 4299990, at *2 (W.D.

La. Dec. 3, 2007) ("[T]he Consent to Removal and affidavit from counsel filed ... after the 30-day

removal period cannot cure any defects that exist in the Notice ofRem ova 1."); Unicorn, 262 F. Supp.

2d at 641 (holding a notice of consent filed outside the removal window was "insufficient to

constitute consent to removal under the requirements of28 U.S.C. § 1446 .... To hold otherwise

would run counter to the principle of strict construction of removal statutes, and effectively negate

the mandatory requirements of28 U.S.C. § 1446"). Casperson's Notice ofConsent was filed more

than two months after he was served, more than a month after the removal window closed, and

nearly three weeks after Push Pedal Pull filed its Motion to Remand based on Casperson's failure

to consent. Casperson did not "timely seek[] to join in the removal," Christiansen, 2011 WL

1230274, at * 6, and his substantially untimely Notice of Consent cannot cure his initial failure to

timely consent. After all, "non-removing defendants who wish to evince consent to removal should

either sign the notice ofremoval or file a timely and unequivocal consent to such course ofconduct,"

Christiansen, 674 F.3d at 933, which Casperson failed to do.

B. Waiver of Casperson's Right to Remove

Push Pedal Pull next argues that, even if Casperson had timely consented, his consent is

invalid. Push Pedal Pull contends that by agreeing to the forum selection clause that provides for

exclusive venue in Minnehaha Circuit Court, Casperson waived both his right to remove and his

right to consent to 2nd Wind's removal. Doc. 11 at 8. If Casperson cannot consent, the unanimity

requirement cannot be satisfied, and remand is required. Doc. 11 at 8-9.

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A forum selection clause may waive a defendant's right to remove if it is "clear and

unequivocal." See Weltman v. Silna, 879 F.2d 425, 427 (8th Cir. 1989). The Eighth Circuit

differentiates between mandatory and permissive forum selection clauses. See Dunne v. Libbra, 330

F.3d 1062, 1064 (8th Cir. 2003). A forum selection clause is mandatory if it uses words such as

"'exclusive,' 'only,' 'must,' or any other terms that suggest exclusivity." Id.; see also United Fire

& Cas. Co. v. Applied Fin., Inc., 397 F. Supp. 2d 1086, 1095 (N.D. Iowa 2005). Here, the

Agreement's forum selection clause is mandatory, rather than permissive, because it requires that

disputes related to the Agreement "shall" be venued "exclusively" in the state court in Minnehaha

County. Doc. 1-1 at 28.

The Eighth Circuit twice has addressed contractual waiver ofa defendant's right to remove

pursuantto a forum selection clause. In Weltman, the Eighth Circuit required that, to effect a waiver

of the right to remove the suit to federal court, the contractual language must be "clear and

unequivocal." 879 F.2d at 427. The forum selection clause in Weltman lacked such a "clear and

unequivocal" waiver because it "did not address removal," but the clause unfortunately was not

quoted within the Weltman opinion. Id. The Eighth Circuit next addressed waiver of the right to

remove through a forum selection clause in iNet Directories, LLC v. Development. Inc., 394 F.3d

1081 (8th Cir. 2005) (per curiam). In iNet, the clause read:

The Parties hereby irrevocably waive any and all objections which any
Party may now or hereafter have to the exercise ofpersonal and subject
matter jurisdiction by the federal or state courts in the State ofMissouri
and to the laying ofvenue ofany such suit, action or proceeding brought
in any such federal or state court in the State of Missouri.

Id. at 1081. The clause in iNet "unambiguously prohibited [the defendant] from objecting to venue"

because ''the parties waive[ d] any objections to the laying of venue in any court in Missouri." Id. at

1081-82 (citing Waters v. Browning-Ferris Indus., Inc., 252 F.3d 796, 797-98 (5th Cir. 2001). Together

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Weltman and iNet stand for the proposition "that a simple agreement that venue is proper in a particular

court is not a 'clear and unequivocal' waiver of the right to remove, but a waiver of the right to object

to venue does constitute a 'clear and unequivocal' waiver ofthe right to remove." Mihlfeld & Assocs.,

Inc. v. Glock, Inc., No. 05-3085-CV-S, 2005 WL 1009579, at *2 (W.D. Mo. Apr. 27, 2005).

The Agreement's forum selection clause is mandatory, but it does not contain an express waiver

of the right to object to venue. The Eighth Circuit has not addressed whether a mandatory forum

selection clause without further language waiving a defendant's right to object to venue satisfies the

"clear and unequivocal" standard of Weltman. The United States Court ofAppeals for the Fifth Circuit

is one of the circuits which applies the "clear and unequivocal" standard to contractual waivers of the

right to remove and was cited to by the Eighth Circuit in iNet. See iNet, 394 F.3d at 1082 (citing to

Waters, 252 F.3d at 797-98 for the proposition that when a party waives objection to venue, the party

waives its right to remove); City ofNew Orleans v. Mun. Admin. Servs .. Inc., 376 F.3d 501, 504 (5th

Cir. 2004) (citing to Waters, 252 F.3d at 796 for the proposition that a contractual waiver ofa party's

right to remove must be clear and unequivocal). In the Fifth Circuit, a forum selection clause satisfies

the "clear and unequivocal" standard if (1) the clause explicitly states that the parties waive their right

to remove; (2) the clause allows the other party to choose the venue; or (3) the clause "establish[es] an

exclusive venue within the contract." City ofNew Orleans, 376 F.3d at 504.

Here, the mandatory forum selection clause in the Agreement stated ''the state court situated in

Minnehaha County, South Dakota, shall be the exclusive jurisdiction of any dispute relating to this

Agreement." Doc. 1-1 at 23. This language clearly and unequivocally places "exclusive jurisdiction"

for contract disputes between Push Pedal Pull and Casperson in state court and is more than a mere

consent to venue. "[S]ubmission to the exclusive jurisdiction of one set ofcourts necessarily excludes

venue in all other courts." Argyll Equities LLC v. Paolino, 211 F. App'x 317, 319 (5th Cir. 2006) (per

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curiam). Mandatory forum selection clauses would lose much of their utility ifa party like Casperson

could contract for a venue for any dispute to be exclusively in a state court but, when a dispute arose,

could avoid that clause by removing or consenting to remove the dispute from the state venue to federal

court. The mandatory forum selection clause here is less clear and unequivocal than other clauses found

to be waivers of rights to remove. See e.g., Crane Constr. Co. v. JKC Constr.. Inc., 793 F. Supp. 2d

1104, 1106-08 (W.D. Mo. 2010). Yet the Agreement is sufficiently clear and unequivocal to constitute

a waiver by Casperson of his right to remove the case from South Dakota state court.

If one defendant in a multi-defendant action contractually waives his right to removal, that

defendant has waived his ability to consent to a co-defendants' removal; the defendants then cannot

satisfy the unanimity requirement, and the case is subject to remand. See e.g., Medtronic, Inc. v.

Endologix, Inc., 530 F. Supp. 2d 1054, 1057 (D. Minn. 2008). Here, the Agreement's forum selection

clause is valid and mandatory, it waived Casperson's right to remove, and it thereby waived his right to

consent. Without Casperson's ability to consent to removal, Defendants cannot satisfy the unanimity

requirement. Thus, even if Casperson's consent were timely, which it was not, this case is subject to

remand.

Defendants counter that Casperson's consent to removal does not constitute a "breach" of the

contract because a breach of contract claim requires damages and because forcing Push Pedal Pull to

litigate in federal court rather than state court does not cause damages. Doc. 10 at 6. Whether a party

may enforce its forum selection clause, however, is not conditional upon whether there are actual

damages. Forum selection clauses are "bargain[s]" and a party who bargains for a particular forum is

entitled to the benefit of that bargain, so long as it is not unjust or unreasonable. See Servewell

Plumbing, LLC v. Fed. Ins. Co., 439 F.3d 786, 790 (8th Cir. 2006); M.B. Rest.. Inc. v. CKE Rest.. Inc.,

183 F.3d 750,752 (8th Cir. 1999) (citing MIS Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (972».

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A party to a bargained-for forum selection clause suffers harm whenever that party does not receive the

benefit ofhis bargain, ifthe forum selection clause is otherwise enforceable. Defendants do not allege

the clause to be unjust or unreasonable, so Push Pedal Pull is entitled to its enforcement.

C. Amount in Controversy

The third argument Push Pedal Pull advances in support ofremand is that Defendants have failed

to satisfy the amount in controversy requirement for this Court to have jurisdiction. Doc. 7 at 6. Federal

district courts have diversity jurisdiction over civil actions between citizens ofdifferent states when the

amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a)(1). When the complaint alleges an

amount under the jurisdictional minimum, the removing party bears the burden of establishing by a

preponderance ofthe evidence that the amount in controversy exceeds $75,000.00. In re Minn. Mut.

Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 834 (8th Cir. 2003). The defendant satisfies the

preponderance ofthe evidence standard ifhe shows that "a fact finder might legally conclude" that the

amount of damages are greater than $75,000.00. Bell v. Hershey, 557 F.3d 953, 959 (8th Cir. 2009)

(internal quotation marks and citation omitted). This inquiry by the district court is fact intensive, id.,

and actual damages, punitive damages, the value ofinjunctive relief, and attorney's fees are all included

when determining the proper amount, Fellerv. Hartford Life & Accident Ins. Co., 817 F. Supp. 2d 1097,

1101 (S.D. Iowa 2010) (citing Bell v. Preferred Life Assurance Socly, 320 U.S. 238, 240 (1943)). A

single plaintiff may aggregate claims against mUltiple defendants to satisfy the amount in controversy.

Lynch v. Porter, 446 F.2d 225,228 (8th Cir. 1971).

Defendants argue that they have established that the amount of actual damages in controversy

is greater than $75,000.00. The pleadings present some difficulty in discerning the total amount of

actual damages Push Pedal Pull seeks. On the one hand, the Complaint alleges eight counts, seven of

which seek in excess of$50,000.00 for each count. Counts Two and Three allege breach ofcontract and

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breach of fiduciary duty against Casperson, stem from Casperson's alleged taking of confidential

information and working in breach of the Agreement, and seek $50,000.00 each. Count Six is against

2nd Wind alone, alleges that 2nd Wind tortiously interfered with Push Pedal Pull's contract with

Casperson, and seeks damages of$50,000.00. Counts Two and Three appear to be related to the same

set of facts, but those claims and set of facts are wholly distinct from the claims in Count Six. Thus,

these three counts appear to place at least $100,000.00 in controversy. On the other hand, Push Pedal

Pull argues that its Complaint's Prayer for Relief seeks actual damages of $50,000.00 in total and that

2nd Wind's Notice of Removal only alleges that an amount in excess of $50,000.00 is in controversy.

Doc. 1 at 2. The Complaint appears to be seeking more than $75,000.00, particularly considering that

punitive damages, fees, and injunctive relief is sought. However, this Court need not resolve this issue

because remand is proper on both of the other grounds alleged by Push Pedal Pull.

IV. CONCLUSION

For the reasons explained in this Opinion and Order, it is hereby

ORDERED that Plaintiffs Motion to Remand to State Court, Doc. 6, is granted and the Clerk

of Court will remand this Case to the Circuit Court of Minnehaha County, South Dakota, from which

it was removed.

Dated September Iq~ 2013.

BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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