On April 11, 2013, in Mayo v. Board of Education of Prince George's County, the US Court of Appeals for the Fourth Circuit issued an opinion holding that a notice of removal signed by one defendant who made representations of consent on behalf of all defendants satisfied the unanimous consent requirement under 28 U.S.C. § 1446.

Temporary employees of the Board of Education of Prince George's County, Maryland (School Board) filed a class action complaint in Maryland state court against the School Board, its chair and a union of state, county and municipal employees, asserting employee compensation claims and seeking the benefits of a $1 million arbitration settlement awarded to the union for the School Board's employment violations.

In April 2011, the School Board and its chair filed a notice of removal stating that the union consented to removal. The union neither signed the notice of removal nor filed its own notice or a written consent to the School Board's notice of removal. The plaintiffs filed a motion to remand, arguing that the removal was defective because the union did not timely file its own notice of removal or provide any written consent to the court. The district court denied the motion to remand, reasoning that Rule 11 of the FRCP should deter attorneys from making any misrepresentations about consent.

The Fourth Circuit agreed with the district court that removal was effective. Removal under 28 U.S.C. § 1446 requires unanimous consent of all defendants, but neither the statute nor case law explains how defendants should express consent. Consequently, different circuits have adopted different approaches to this requirement. In this case, the Fourth Circuit joined the US Court of Appeals for the Sixth and Ninth Circuits and adopted the less formal approach. The Fourth Circuit held that a notice of removal signed by at least one attorney representing that all defendants consent is adequate for removal purposes. Therefore, multiple signatures or separate notices of removal are not required for cases with multiple defendants. In contrast, the US Court of Appeals for the Seventh Circuit requires all served defendants to sign a notice of removal, while the US Court of Appeals for the Fifth Circuit requires some kind of written indication from each defendant that it consents to removal.

The court noted that although it was interpreting a previous version of 28 U.S.C. § 1446, the analysis remains the same under the current version of the statute enacted by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, which became effective in January 2012.

Attorneys seeking removal in cases with multiple defendants should be aware of these different notice of removal approaches. The Fourth Circuit allows one defendant to make representations on behalf of other defendants, but other courts may require all of the served defendants to sign the notice of removal or otherwise consent to removal in writing.