In Griffioen v. Cedar Rapids & Iowa City Railway. Co., the Eighth Circuit split from two circuit courts when it adopted a new stance on the rule of unanimity, dealing with removal based on a federal question. Specifically, the court strayed from its prior precedent when it held that representation in a removing defendant’s notice—stating that its codefendants consented to the removal— satisfies the United States Code’s unanimity requirement. As part of its reasoning, the Eighth Circuit held that because the defendant who gives consent on behalf of the codefendants is subject to Rule 11 sanctions, policy considerations support the validity of the consent.
This note begins by exploring the history, development, and construction of removal and the rule of unanimity in the United States. The note will then discuss the development of the rule of unanimity’s consent requirement as it has been used by the circuit courts. Next, this note will analyze an important case from the splitting Seventh Circuit court. Following the reasoning of the Seventh Circuit, this note will explain the facts of Griffioen and examine the reasoning of the majority opinion. Next, using statutory interpretation and policy implications brought about by the Model Rules of Professional Conduct, the note will analyze the Eighth Circuit’s decision, showing that the court correctly veered away from its own prior decisions and the precedent set by the Seventh Circuit when it held that a sole defendant may give consent for codefendants. Finally, this note concludes by contending that although the Eighth Circuit’s decision in Griffioen was correct, the holding may have paved the way for defendants to exploit the rule of unanimity in order to force a non-consenting defendant into a federal forum against his or her will.