Case 1:10-cv-00317-WYD Document 17 Filed 02/18/2010 USDC Colorado Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 10-cv-00317-WYD

INTERNATIONAL THREE CROWN PETROLEUM LLC; and

ISRAEL PETROLEUM COMPANY,

Plaintiffs,
v.

PETROMED CORPORATION;
HAGAI AMIR;
LYLE DURHAM;
EAST MEDITERRANEAN EXPLORATION COMPANY LIMITED; and
DAVID PEACE,

Defendants.

PLAINTIFFS’ RESPONSE TO REMOVAL ISSUES

Plaintiffs International Three Crown Petroleum LLC (“ITC”) and Israel Petroleum

Company Limited (“IPC”) (collectively, “Plaintiffs”) respectfully submit a brief jointly

responding to: (1) “PetroMed Defendants’ Notice of Removal” by Defendants PetroMed Corp.,

Hagai Amir, and Lyle Durham (collectively, the “PetroMed Defendants”), Docket No. 1;

(2) “PetroMed Defendants’ Response to Court’s Order to Show Cause”, Docket No. 14; and

(3) the “Response and Objection to Defendants PetroMed Corporation, Amir, and Durham’s

Notice of Removal” by Defendants Eastern Mediterranean Exploration Company Limited and

David Peace (collectively, the “East Med Defendants”), Docket No. 15.

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I. INTRODUCTION

Plaintiffs are faced with a series of filings and motions by Defendants that all have one

effect: delay. While Plaintiffs surmise that this common effect is not a mere coincidence, such

conjecture does not get Plaintiffs what they urgently sought by filing their complaint and motion

for a temporary restraining order (“TRO”): immediate relief from a grave risk of irreparable

harm. For the reasons set forth below, Plaintiffs respectfully and urgently request that this Court

put a halt to Defendants’ procedural machinations so that both this Court and the parties may

focus on the substance of this case.

II. BACKGROUND

As this Court is no doubt acutely aware, although this case is less than a week old, it

already has a tortured history. Plaintiffs believe that a brief exposition of that history will guide

the proper resolution of the issues raised by Defendants’ recent papers.

This case was initiated last Friday in Denver District Court. That day, Plaintiffs filed

their Verified Complaint and Motion for a TRO, seeking urgent and immediate injunctive relief

from irreparable harm to Plaintiffs’ contractual rights caused by, among other things, (1) the

PetroMed Defendants’ ongoing breach of their contractual obligations to Plaintiffs; and (2) the

East Med Defendants’ intentional, tortious interference with such contractual rights. Denver

District Court Judge Hood promptly set a hearing on the TRO for 9:00 a.m. on the next business

day, Tuesday, February 17, 2010.

The PetroMed Defendants filed their Notice of Removal on the evening of February 16,

2010. Docket No. 1. This eleventh-hour removal divested the Denver District Court of authority

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to hold the TRO hearing for which it had spent the President’s Day holiday preparing. See 28

U.S.C. § 1446(d). The effect of removal was the delay of a hearing on Plaintiff’s TRO motion.

Choosing to focus their limited time on obtaining a prompt hearing on their urgent

motion for a TRO, Plaintiffs did not to object to the procedural defects in the Notice of Removal.

Instead, on February 17, 2009, Plaintiffs acquiesced to removal by filing their renewed motion

for a TRO in this Court. Docket No. 5. That renewed motion re-tuned Plaintiffs’ state court

TRO motion to the distinct contours of relevant federal law. See id.

Hours after that renewed motion was filed with this Court, counsel for the East Med

Defendants filed an entry of appearance in this matter. Docket No. 6. No motion to remand or

objection to the removal procedure accompanied that appearance. See id.

Also on February 16, 2009, this Court issued an Order Setting Hearing and Order to

Show Cause. Docket No. 7. The hearing is set for 1:30 p.m. on February 18, 2009. Id.

The PetroMed Defendants responded by filing a motion to continue the TRO hearing, in

which their counsel represented that he “anticipate[d]” that he might have a conflict with the

1:30 setting.1 Docket No. 8. Had this Court not promptly denied the motion (Docket No. 11),

the effect would have been further delay of a hearing on Plaintiff’s TRO motion.

Shortly after the continuance was denied, the East Med Defendants filed their oddly

timed “objection” to the Notice of Removal. Docket No. 15. The “objection” cited to authority

requiring “all served defendants . . . to join or consent to” removal. Id. (emphasis added). This

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Plaintiffs note that counsel for the PetroMed Defendants has an “of counsel,” Matthew Nelson, whose name
appears on the signature line of the PetroMed Defendant’s Notice of Removal. Docket No. 1 at 3. Mr. Nelson’s
name is conspicuously absent, however, from the signature line of the PetroMed Defendant’s Motion for
Continuance. Docket No. 8 at 3.

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one-page “objection” neglected to apprise the Court of the fact that the East Med Defendants—

both of whom are residents of the United Kingdom—had yet to be served with process. Nor

does the “objection” acknowledge the fact that East Med previously sued IPC, ITC, and others in

this Court, based on the same agreements that are at issue in the present matter. 2 The effect of a

remand of this case would be further delay of a hearing on Plaintiff’s TRO motion.

III. ARGUMENT

While the removal statute is silent on whether all defendants must consent to removal, the

federal courts have adopted a general rule that all defendants must join in a removal petition or

removal will be defective. See Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981). This

requirement is known as the “rule of unanimity.” Bonadeo v. Lujan, No. CIV-08-0812 JB/ACT,

2009 WL 1324119, at *5 (D.N.M. Apr. 30, 2009) (citing 14C C. Wright & A. Miller, Federal

Practice and Procedure § 3731, at 258 (1998)).

There is an exception to the rule of unanimity. Many courts “have held that unserved

defendants need not join the notice of removal.” Bonadeo, 2009 WL 1324119, at *6 (collecting

cases); accord Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997) Emrich v. Touche

Ross & Co., 846 F.2d 1190, 1193 (9th Cir. 1988). And this Court appears to be in agreement.

See, e.g., Scheall v. Ingram, 930 F. Supp. 1448, 1449 (D. Colo. 1996) (“[Section] 1446(b)

requires all served defendants, except nominal defendants, to join or consent to the removal

petition within thirty days of service, commencing when the first defendant is served.” (emphasis

2
East Med voluntarily dismissed that case on the strength of the defendants’ briefs, which pointed out fundamental
and incurable Rule 12 defects that plagued the case. See E. Mediterranean Exploration Co., Ltd v. Int’l Three
Crown Petrol. Co., LLC, et al., Case No. 10-cv-00007-RPM.

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added)); see also 28 U.S.C. § 1448 (“This section shall not deprive any defendant upon whom

process is served after removal of his right to move to remand the case.” (emphasis added)).

Moreover, the general rule of unanimity is procedural—not jurisdictional. Farmland

Nat’l Beef Packing Co., L.P. v. Stone Container Corp., 98 F. App’x 752, 756 (10th Cir. 2004)

(citing Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981)). Hence, a plaintiff may waive

such a procedural defect, especially in order to expedite litigation. Kelton Arms Condo. Owners

Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (stating, in the context of

a procedurally defective removal, “procedural requirements exist primarily for the protection of

the parties. Like personal jurisdiction, they can be waived. A plaintiff may wish to remain in

federal court even though he or she originally filed in state court. For example, a plaintiff might

do this simply to expedite the litigation.”); Whole Health Chiropractic & Wellness, Inc. v.

Humana Med. Plan, Inc., 254 F.3d 1317, 1321 (11th Cir. 2001) (“We also recognize that a

plaintiff may acquiesce to federal jurisdiction, and forgive any of the defendant’s procedural

errors in removing the case.”).

The East Med Defendants have yet to be served in this matter.3 Because the East Med

Defendants have not been served, their lack of consent to the notice of removal does not

constitute a defect in the removal process. See, e.g., Bonadeo, 2009 WL 1324119, at *6; see also

Ingram, 930 F. Supp. at 1449.

Indeed, Plaintiffs chose to renew their motion for a TRO by revising it and refilling it in

this Court. Plaintiffs have unequivocally acquiesced to removal to this Court. See, e.g.,

Homestead Ins. Co., 346 F.3d at 1192; Humana Med. Plan, Inc., 254 F.3d at 1321. Such

3
The delay in service is a consequence of the exigencies of inter-continental service of process.

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acquiescence was motivated by Plaintiffs’ urgent need to expedite a hearing on its motion for a

TRO—particularly in light of the dilatory effect of removal. It would be a miscarriage of justice

to allow the East Med Defendants, who have already sued on this matter in this Court, to stand in

the way of such a hearing.

* * *

In the face of imminent irreparable harm, Plaintiffs have prayed two courts for urgent,

essential relief. See Dillon Cos. v. United Food & Commercial Workers Union, No. 09-cv-

01364-PAB-BNB, 2009 WL 1795577, at *7 (D. Colo. June 23, 2009) (noting that a TRO is an

“essential a stop-gap measure to be imposed when relief is needed urgently”). Plaintiffs stand to

lose their entire business, their investment, and a resource of potentially immense value.

Plaintiffs stand ready to show this Court that they are entitled to a TRO. It is time for

distractions to cease and for Defendants to engage this case on the merits.

Respectfully submitted this 18th day of February, 2010.

HOGAN & HARTSON LLP

s/ David A. DeMarco
Daniel J. Dunn, #10464
David A. DeMarco, #40425
1200 Seventeenth Street, Suite 1500
Denver, Colorado 80202
303.899.7300
303.899.7333 (fax)
djdunn@hhlaw.com
dademarco@hhlaw.com

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I hereby certify that on this 18th day of February, 2010, I electronically filed the
foregoing PLAINTIFFS’ RESPONSE TO REMOVAL ISSUES with the Clerk of the Court
using the CM/ECF system which will send notification of such filing to the following e-mail
addresses:

R. Parker Semler
Matthew Nelson
Semler & Associates, P.C.
1775 Sherman Street, Suite 2015
Denver, Colorado 80203
parker@semlerlaw.com

Gerald Lynn Jorgensen

Jorgensen, Motycka & Lewis, PC-Longmont
709 Third Avenue
Longmont , CO 80501
gerald@counselcolorado.com
s/ David A. DeMarco

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