Reported / Citable
Background
Approximately 35 Texas citizens sued ONEOK, Summit Industrial Construction, and other defendants in Texas state court after an explosion and fire at an ONEOK facility. The petition alleged that Summit, a Texas citizen, was believed to have performed services at the facility that contributed to the fire. The ONEOK and Burns & McDonnell defendants were citizens of other states.
Summit denied involvement in the accident in interrogatory responses served in February 2026 and again in a June 2026 declaration. The ONEOK defendants removed the case on June 18, 2026, asserting that Summit had been improperly joined and that complete diversity therefore existed. The plaintiffs and intervenors moved to remand, arguing among other things that the Burns & McDonnell defendants had not timely provided written consent to removal.
The Court’s Holding
The court granted the motion to remand because the removing defendants failed to satisfy the statutory unanimity requirement. No Burns & McDonnell defendant timely filed a written statement expressly consenting to removal. The appearance of their new counsel within 30 days after removal did not constitute consent because the notice of appearance contained no explicit indication that those defendants agreed to removal.
The court also addressed ONEOK’s reliance on Summit’s June declaration as “other paper” triggering a new 30-day removal period. It noted that Fifth Circuit precedent generally requires such a paper to result from a voluntary act of the plaintiff, which Summit’s declaration did not. But the court did not decide whether the declaration qualified: even assuming it did and the removal was timely, the failure to document the Burns & McDonnell defendants’ consent required remand.
Key Takeaways
- Each properly joined and served defendant must timely provide a written indication of consent when a case is removed solely under 28 U.S.C. § 1441(a).
- A notice of appearance that does not expressly state consent to removal does not satisfy the unanimity requirement.
- The court left unresolved whether a co-defendant’s declaration could qualify as “other paper” under § 1446(b)(3), because the independent consent defect required remand.
Why It Matters
The decision underscores that procedural compliance is essential in removal practice. Even when defendants contend that a nondiverse party was improperly joined and that later evidence made removability ascertainable, removal can fail if every properly joined and served defendant does not timely document consent.
The case was remanded to the 295th Judicial District Court of Harris County, Texas.