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Date: 01-30-2023

Case Style:

Jerry Ashenfelter, et al. v. Escott Aerial Spraying, LLC, et al.

Case Number: 22-cv-1144

Judge: Eric F. Melgren

Court: United States District Court for the District of Kansas (Sedgwick County)

Plaintiff's Attorney:

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Defendant's Attorney: Allison B. Christian and Ryan M. Peck

Description: Wichita, Kansas personal injury lawyer represented Plaintiffs who sued Defendants on negligence damage of property.

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Five plaintiffs filed suit in state court against six defendants alleging that Defendants sprayed pesticides on their properties resulting in damage to their properties. Plaintiffs assert five state law claims and seek $620,760.00 in damages. Three Defendants, with the consent of the other three Defendants, removed the case to this Court. Plaintiffs are now before the Court with a Motion to Remand (Doc. 15) asserting that the removal of the action was procedurally improper because two of the three consenting Defendants failed to appropriately and timely provide written consent. Because the Court finds that Defendants cured the procedural defect and there is limited prejudice to Plaintiffs, the Court denies Plaintiffs' motion.

Plaintiffs Jerry Ashenfelter, Rita Ashenfelter, Jason Braun, Lisa Braun, and Lora Bennet filed suit on May 25, 2022, in Cowley County, Kansas District Court. Defendants include TriCountry Sprayers, Inc., Brad Lakey, Vance Lakey (collectively “Tri-County Defendants”); Escott Aerial Spraying, LLC (“Escott”); Andy Deterding AG Aviation, Inc. (“Deterding AG”), and Thomas Deterding (collectively “Deterding Defendants”). Plaintiffs assert five state law claims based on alleged damage to their property from Defendants' crop dusting with pesticides.

On June 2, 2022, Defendants Escott and Thomas Deterding were served with process. On June 8, 2022, Tri-County Defendants were served with process. On June 27, 2022, Defendant Deterding AG was served with process through counsel.

On June 29, 2022, Tri-County Defendants removed the case from Cowley County, Kansas District Court to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. In the Notice of Removal, Tri-County Defendants asserted that they were served with the summons and petition on June 8, 2022. They also asserted that Defendant Escott and Deterding Defendants consented to the removal of the action. On the same day, Tri-County Defendants filed an Answer in this Court.

On July 1, 2022, counsel for Escott entered his appearance. On July 5, 2022, counsel for Deterding Defendants entered his appearance and filed an Answer. On July 11, 2022, Defendant Escott filed its Answer.

On July 22, 2022, Plaintiffs filed their Motion to Remand asserting that Defendant Escott and Deterding Defendants failed to appropriately consent to removal. In addition, Plaintiffs asserted that Defendant Escott and Thomas Deterding failed to timely provide consent. On July 25, 2022, Defendant Escott and Deterding Defendants filed written Notices of Consent.

On July 26, 2022, Deterding AG filed a Notice of Removal. In this Notice, it asserted that although prior notice by Tri-County Defendants was previously filed, Notice was being filed in an abundance of caution. On this same date, the other five Defendants filed separate notices of consent.

Plaintiffs are now before the Court with their Motion to Remand.

* * *

There is no explicit requirement in § 1446 as to when a defendant must consent to the removal of the action. Section 1446(b)(1) provides that “[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service . . . of a copy of the initial pleading.”[15] Section 1446(b)(2)(B) provides that “[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (2) to file the notice of removal.”[16] And section 1446(b)(2)(A) states that “[w]hen a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”[17] Accordingly, the statute requires properly served defendants to join or consent to the removal, but it does not explicitly state when their consent must be filed.

Outcome: Motion denied.

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