Taylor v. Medtronic, Inc., No. 20-742 (2d Cir. 2021)
Annotate this CaseThe Second Circuit reversed the district court's denial of plaintiff's motion to remand to state court and grant of defendants' motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6). The court concluded that a properly served defendant cannot cure a failure to timely consent to removal by opposing a motion for remand when the opposition is filed after the thirty-day statutory period for removal lapsed. The court explained that, even if it were to assume that Covidien LP eventually consented to removal when it opposed the motion for remand, that consent, which came seventeen days after the thirty-day statutory period for removal lapsed, may not undo or fix the timeliness problem. Nor is the court free to create an exception to the statute's mandatory language requiring timely consent. In this case, the court found remand appropriate and vacated the district court's dismissal of the complaint.
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