IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

KYLE LAWSON, et al., )
)
Plaintiffs, )
)
v. ) Case No. 4:14-cv-00622-ODS
)
ROBERT KELLY, et al., )
)
Defendants/Intervenors. )

SUGGESTIONS IN OPPOSITION TO
MOTION FOR REMAND

The State, an intervening defendant as a matter of right (and for which the
Plaintiffs also consented to intervention), timely removed this case from state court. An
intervening defendant is permitted to remove a case if all defendants consent, and all
defendants consented in this case. Because the State may remove and the removal was
properly effectuated, this Court should deny Plaintiffs Motion for Remand.
Background
There is no question that this Court has jurisdiction over Plaintiffs claims.
Plaintiffs sued Robert Kelly, the Recorder of Deeds for Jackson County, Missouri,
under 42 U.S.C. 1983, alleging that a state statute and a state constitutional
provision violate the Fourteenth Amendment of the U.S. Constitution. (Doc. 1, Ex. 1).
Plaintiffs ask that the state statute and constitutional provision be declared
unconstitutional, and to further require Defendant Kelly to issue marriage licenses to
same-sex couples. (Doc. 1, Ex. 1).
Case 4:14-cv-00622-ODS Document 16 Filed 08/28/14 Page 1 of 9
2
Defendant Kelly was served on June 26, 2014. As required by Missouri law,
Plaintiffs also filed their Notice of Service on the Attorney General of Missouri. On July
10, 2014, the State of Missouri, by and through the Missouri Attorney General in his
official capacity, and with the consent of the Plaintiffs, intervened as a matter of right
to defend the state laws.
1/
(Doc. 1, Ex. 2). The State, as an Intervenor-Defendant, then
removed the case on July 15, 2014 and averred in the notice of removal that all
defendants consent to removal. (Doc. 1). The notice of removal, including the averment
that all defendants consent, was served on all Plaintiffs and Defendant Kelly. (Doc. 1).
On July 22, 2014, before the time for removal had expired, Defendant Kelly, the
only other defendant in the case, filed his answer in federal court, not state court. (Doc.
5). Following the Plaintiffs argument that Defendant Kelly supposedly did not consent
to removal despite filing an answer and affirmative defenses, Defendant Kelly filed a
notice to confirm that he had indeed consented to removal. (Doc. 14). Defendant Kelly
also filed his certificate of service with respect to discovery in federal court. (Doc. 13).
Argument
Seeking remand, Plaintiffs argue: (1) that an intervenor may not remove an
action to federal court; and (2) that even if a defendant-intervenor may remove, the
notice of removal was defective in this case. Each of Plaintiffs arguments fail. The case
was properly removed to this Court under 28 U.S.C. 1441 and 1446. Accordingly,
this Court should deny Plaintiffs Motion for Remand.

1/
Plaintiffs argue that the State has a right to intervene only to be heard. But
the State of Missouri intervened in this case to defend state laws.
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I. An Intervenor May Remove a Case to Federal Court.
While 1441 permits the defendant or the defendants to remove a case to the
federal court, 28 U.S.C. 1441(a), the suggestion that an intervenor cannot remove a
case is incorrect. See e.g., Pennell v. Collector of Revenue, 703 F.Supp. 823 (W.D. Mo.
1989) (denying co-defendants motion to remand and permitting intervening party to
defend action in federal court); Baker v. National Boulevard Bank of Chicago, 399
F.Supp. 1021 (N.D. Ill. 1975) (finding that defendant did not waive right to remove by
intervening in state court, but ultimately remanding case for lack of jurisdiction).
Intervenors may file notices of removal if they are properly aligned as defendants, but
the intervention must precede the removal. 14C Wright, et al., Federal Practice and
Procedure 3730 (4
th
ed. 2009). Given that in Pennell this very Court permitted an
intervenor to remove a case from state court and defend the action in federal court,
even over the objection of a co-defendantthe suggestion that an intervenor cannot
remove to federal court is simply not true.
The cases denying removal to an intervenor stand only for the unremarkable
proposition that not every intervenor may remove a case to federal court. This includes
Potabe v. Robichaux, 1999 WL 455442 (E.D. La. June 25, 1999). In Potabe, the district
court certainly found that the intervenor was not permitted to remove the case to
federal court, but in that case the court found that PNG voluntarily interjected itself
into the proceeding as a party plaintiff, who has no right of removal. Potabe, at *4. In
fact, prior to intervention the federal court had already remanded the case back to the
state court because it did not have jurisdiction over the original claim. The sole basis
Case 4:14-cv-00622-ODS Document 16 Filed 08/28/14 Page 3 of 9
4
for removing the action to federal court was the claim of the intervenor. Not
surprisingly, if the sole basis for removing the action is the claim raised through the
intervention of the intervening defendant, the intervenor may not remove the action.
Ibid. quoting 16 Moores Federal Practice, 107.11(1)(b)(v) (alterations omitted). The
general rule is that an intervenor may not remove if a federal jurisdictional basis is
absent from the case at the time of intervention. Baker, 399 F.Supp. at 1023.
2/
Here, federal jurisdiction is based on Plaintiffs original claims raising federal
questions. The State intervened to defend the state laws, and almost immediately
removed the case. Of course, an intervening defendant should not be permitted to
prolong the time for removal indefinitely by deliberately withholding a motion to
intervene in state court. Ibid. But here, the State of Missouri did not attempt to
prolong the time for removal. Indeed, the State of Missouri filed its Notice of Removal
averring that all defendants consented to removal almost two full weeks before the
notice was due. The State of Missouri acted promptly to remove the case to federal
court, so any concerns regarding a party waiting to intervene until the last minute are
entirely unfounded in this case.
Furthermore, while it is true that in some cases Missouri law treats a defendant
differently than an intervenor, Federal law determines who is a plaintiff and who is a
defendant for purposes of applying the removal statute. 14C Wright, et al., Federal
Practice and Procedure 3730 (4
th
ed. 2009). And federal law permits an intervenor to

2/
In Baker, the intervenorciting to Real Estate Loan Co. v. Brown, 23 F.2d 329
(N.D. Ga. 1927) (permitting an intervenor to remove a state case to federal court after
realigning parties)asked the court to realign the parties in order to attain complete
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remove a case to federal court. See e.g., Pennell, supra. As Pennell shows, this is
particularly true where the intervening party is the real party in interest. In this case,
the Missouri Attorney General is the state official empowered by state law to defend
the states interests. See Mo. Rev. Stat. 27.060. The State, and not the Recorder of
Deeds, is the real party in interest. Furthermore, the State is properly aligned as a
defendant and, as an intervening defendant, may remove the case to federal court.
3/

II. The State Properly Effectuated Removal in This Case.
The general removal statute permits a notice of removal to be filed within 30
days after receipt of the pleading and has been interpreted to require that all
defendants must consent to removal. Pritchett v. Cottrell, Inc., 512 F.3d 1057, 1062
(8
th
Cir. 2008) (internal citations omitted). But neither the statute nor the Supreme
Courts decisions have specified how defendants are to give their consent to removal.
Mayo v. Board of Educ. of Prince Georges Co., 713 F.3d 735, 741 (4
th
Cir. 2013).
Different circuits have adopted different requirements. For instance, the Seventh
Circuit requires all defendants to sign the petition for removal, See ibid. citing
Gossmeyer v. McDonald, 128 F.3d 481, 489 (7
th
Cir. 1997), whereas the Fourth, Sixth,
and Ninth circuits require only an averment in the petition for removal that all
defendants consent, See ibid. citing Harper v. AutoAlliance Intl, Inc., 392 F.3d 195,
201-02 (6
th
Cir. 2004), and Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225
(9
th
Cir. 2009).

diversity to establish the federal courts jurisdiction.
Case 4:14-cv-00622-ODS Document 16 Filed 08/28/14 Page 5 of 9
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The Fifth and Eighth circuits require something in between. See Mayo, 713 F.3d
at 741 citing Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 n. 11 (5
th
Cir.
1988), and Pritchett, 512 F.3d at 1062. While the failure of one defendant to consent
renders the removal defective, each defendant need not necessarily sign the notice of
removal. Pritchett, 512 F.3d at 1062. There must, however, be some timely filed
written indication from each served defendant, or from some person with authority to
act on the defendants behalf, indicating that the defendant has actually consented to
the removal. Ibid. citing Getty Oil Corp., 841 F.2d at 1262 n. 11. The timely-filed
written indication can be an answer or a motion to dismiss. See Noel v. Laclede Gas
Co., 612 F.Supp.2d 1051, 1056 (E.D. Mo. 2009).
Here, the notice of removal specifically averred that all defendants consented to
removal, and was served on all parties including Defendant Kelly; and Plaintiffs do not
question that averment. Defendant Kelly then filed his answer in federal court, not
state court, and sought affirmative relief, i.e., he asked the Court to dismiss Plaintiffs
claims with prejudice. Presumably in response to the allegations that the previous
evidence of his consent was insufficient, Defendant Kelly also filed a Confirmation of
Consent to Removal to make perfectly clear that he had in fact consented to removal of
the action from state court to federal court. This Court should deny the motion to
remand because the notice of removal was timely filed and all defendants consented.

3/
The State of Missouri intervened in this case to defend against Plaintiffs
original claims and was not joined as a third-party defendant. Therefore, any
comparison to third-party defendants is simply inapposite.
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III. Removal Procedures are Not Jurisdictional.
Plaintiffs do not challenge this Courts jurisdiction over the claims in the case;
nor do Plaintiffs contest that all defendants consented to the removal of this action.
Instead, Plaintiffs challenge only whether Defendants complied with the removal
procedures. Specifically, whether the Answer filed by Defendant Kelly is sufficient
evidence of consent. The evidence of consent is sufficient, and even so the Plaintiffs
arguments merely ask this Court to exalt form over substance. This Court is not
required to do so.
Although Defendant Kellys Answer evinces his consent to removal,even more
so when considered in tandem with the Confirmation of Consent to Removalfailure to
properly join the notice of removal is not a jurisdictional defect, but a procedural one.
See Nolan v. Prime Tanning Co., Inc., 871 F.2d. 76, 78 (8
th
Cir. 1989). In City of
University City, Mo. v. AT & T Wireless Services, Inc., the Eastern District of Missouri
specifically found that failure to provide proof of consent, though a technical defect, did
not warrant remand, where Defendants counsel averred that all defendants consented
to removal. City of University City, Mo. v. AT & T Wireless Services, Inc., 229 F.Supp.2d
927, 930 (E.D. Mo. 2002). Because such a failure is a technical defect, the Court has the
authority to permit defendants to file an amended notice of removal in order to correct
the defect. See Boyle v. City of Liberty, 1993 WL 20177, *4 (W.D. Mo. Jan. 29, 1993)
(permitting defendants to file amended notice of removal to correct technical defect).
If this Court finds that the averments of counsel along with the Answer and
subsequent Confirmation of Consent to Removal filed by Defendant Kelly, do not show
Case 4:14-cv-00622-ODS Document 16 Filed 08/28/14 Page 7 of 9
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unambiguous consent to removal, the State requests the opportunity to file an
amended notice of removal to comply with the technical requirements.
4/

Conclusion
For the reasons stated above, the State of Missouri, by and through the Missouri
Attorney General in his official capacity, asks the Court to deny Plaintiffs Motion for
Remand.
Respectfully submitted,


By: /s/ Jeremiah J. Morgan
Jeremiah J. Morgan, Mo. Bar #50387
Deputy Solicitor General
P.O. Box 899
Jefferson City, Missouri 65102-0899
(573) 751-1800; Fax: (573) 751-0774
jeremiah.morgan@ago.mo.gov

ATTORNEYS FOR STATE OF
MISSOURI BY AND THROUGH THE
MISSOURI ATTORNEY GENERAL IN
HIS OFFICIAL CAPACITY

4/
Defendant Kelly may also be considered a nominal defendant whose consent to
removal is not even required. See 14C Wright, et al., Federal Practice and Procedure
3730 (4
th
ed. 2009). Defendant Kelly acknowledges that Plaintiffs claims are properly
directed to the State and not to him. As Recorder of Deeds for Jackson County,
Missouri, Defendant Kelly merely issues marriage licenses in accordance with Missouri
lawwhatever it is. The State, by and through the Missouri Attorney General in his
official capacity, is the real party in interest and responsible for defending the states
interests in court. See Mo. Rev. Stat. 27.060.
Case 4:14-cv-00622-ODS Document 16 Filed 08/28/14 Page 8 of 9
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served
electronically via the Courts CM/ECF system, this 28
th
day of August, 2014, to:
Anthony E. Rothert
Grant R. Doty
ACLU of Missouri Foundation
454 Whittier Street
St. Louis, Missouri 63108
trothert@aclu-mo.org

Gillian R. Wilcox
ACLU of Missouri Foundation
3601 Main Street
Kansas City, Missouri 64111
gwilcox@aclu-mo.org

Attorneys for Plaintiffs

W. Stephen Nixon
Jay D. Haden
Jackson County Counselor
415 East 12
th
Street, Second Floor
Kansas City, Missouri 64106
cocounselor@jacksongov.org
jhaden@jacksongov.org

Attorneys for Defendant Robert Kelly


/s/ Jeremiah J. Morgan
Jeremiah J. Morgan
Deputy Solicitor General
Case 4:14-cv-00622-ODS Document 16 Filed 08/28/14 Page 9 of 9