Wells Fargo Bank NA v. Fitzgerald

• Court: District Court, E.D. Wisconsin
• Decided: January 27, 2025
• Docket: 2:24-cv-00835
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

WELLS FARGO BANK NA,

Plaintiff,

Case No. 24-cv-0835-bhl v.

PATRICK FITZGERALD, BRITTANY FITZGERALD and DISCOVER BANK,

Defendants. ______________________________________________________________________________

ORDER ______________________________________________________________________________

On March 15, 2024, Plaintiff Wells Fargo Bank, N.A., commenced suit against Defendants Patrick Fitzgerald, Brittany Fitzgerald, and Discover Bank to foreclose on a mortgage. (ECF No. 1-1 at 22.) On July 3, 2024, well past the 30-day procedural deadline for removal, 28 U.S.C. § 1446(b)(1), the Fitzgeralds removed the case to this Court, invoking both federal jurisdiction and diversity jurisdiction. (ECF No. 1 at 1, 4.) In response, on September 6, 2024, Wells Fargo moved to remand the case. (ECF No. 5.) The Fitzgerald’s notice of removal is signed only by them. (ECF No. 1 at 8.) It is not signed by the other defendant in this case, Discover Bank. Indeed, at this point, Discover Bank has neither consented to removal nor otherwise appeared before the Court. Valid removal generally requires the consent of all defendants. Northern Ill. Gas Co. v. Airco Indus. Gases, A Division of Airco, Inc., 676 F.2d 270, 271–72 (7th Cir. 1982) (citing Chi., Rock Island, & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248 (1900)). While Wells Fargo argues for remand on a variety of grounds, it does not address Discover Bank’s failure to join in the removal. The Fitzgeralds’ briefing does not address Discover Bank’s absence either. (See ECF Nos. 5–7.) Given Discover Bank’s failure to appear, it is unclear if Discover Bank is even aware that this case is now in federal court, let alone that it joins in the Fitzgerald’s decision to remove the matter to this court. The Court will therefore order all parties—including Wells Fargo, the Fitzgeralds, and Discover Bank—to submit supplemental briefing within 7 days, addressing Discover Bank’s failure to consent to removal and how that failure affects removal and the pending motion to remand. Accordingly, IT IS HEREBY ORDERED that all parties must submit supplemental briefing on how Discover Bank’s absence affects removal and the pending motion to remand, ECF No. 5, on or before February 3, 2025. Dated at Milwaukee, Wisconsin on January 27, 2025. s/ Brett H. Ludwig BRETT H. LUDWIG United States District Judge