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
SEP 1 9 2013
OPINION AND ORDER
PUSH PEDAL PULL, INC., formerly
knows as The R.D. Rogers Company,
KENT CASPERSON, Individually, and
2ND WIND EXERCISE EQUIPMENT,
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
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 3 of 17 PageID #: 124
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.
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 4 of 17 PageID #: 125
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
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.
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 5 of 17 PageID #: 126
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 6 of 17 PageID #: 127
"[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)
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 7 of 17 PageID #: 128
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 8 of 17 PageID #: 129
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 9 of 17 PageID #: 130
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 10 of 17 PageID #: 131
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 11 of 17 PageID #: 132
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
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 12 of 17 PageID #: 133
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.
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 13 of 17 PageID #: 134
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 14 of 17 PageID #: 135
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 15 of 17 PageID #: 136
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
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».
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 16 of 17 PageID #: 137
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
Case 4:13-cv-04057-RAL Document 23 Filed 09/19/13 Page 17 of 17 PageID #: 138
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.
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