PORTLAND (LN) — U.S. District Judge Amy M. Baggio granted a motion to remand Jorden Hollingsworth’s wage dispute to state court on Monday, ruling that Defendant Atrium Payroll Services LLC failed to consent to removal within the required 30-day window and that the defect could not be cured later.
Hollingsworth sued Terra Kai Organics Inc., doing business as Juce Organics, and Atrium Payroll Services in Multnomah County Circuit Court on January 5, 2026, alleging retaliation for protected wage activity, willful failure to pay final wages, unlawful falsification of payroll records, and conversion.
Terra Kai removed the case to federal court on diversity jurisdiction grounds on February 10, 2026, but the notice did not indicate that Atrium had joined in or consented to the removal.
Atrium was served on January 14, 2026, and filed a notice of consent on February 19, 2026, nine days after Terra Kai had already removed the case.
Hollingsworth moved to remand the case, arguing that the removal was procedurally defective because Atrium did not join in or consent to the removal within the statutory period required by 28 U.S.C. § 1446(b)(2)(A).
Terra Kai did not dispute that Atrium’s consent was late, but argued that the rule of unanimity could be substantially satisfied after removal because the defendants cured the procedural defect by obtaining consent before the court ruled on the issue.
Baggio found the consent to be late and incurable, noting that the law is unsettled on the deadline for consent under the 2011 amendments to the removal statute, which left district courts in the Ninth Circuit to implement a variety of different approaches.
The judge outlined three competing rules for calculating the timeliness of consent: 30 days defendant’s service, 30 days of removal, or 30 days the consenting defendant was served.
Under the first and third rules, Atrium’s consent was untimely; under the second, it would have been timely.
Baggio concluded that the second category, which would save Atrium, was not applicable because those cases involve removal by a later-served defendant, whereas Terra Kai was both the earlier-served and removing defendant.
The court noted that because Terra Kai removed within the 30-day period following service on Atrium, the statute contemplates generosity toward the earlier-served defendant only of a later-served defendant removing.
Because Atrium did not file its consent until February 19, 2026, 38 days after service on Terra Kai and 36 days after service on Atrium, consent was untimely and rendered the removal procedurally defective.
Terra Kai relied on the Ninth Circuit’s 2011 decision in Destfino v. Reiswig, which suggested that a district court may allow removing defendants to cure the defect by obtaining joinder of all defendants prior to the entry of judgment.
Baggio noted that many district courts have doubted the applicability of Destfino, arguing it was decided before the 2011 amendments codified the unanimity rule and that the statute contains no method for curing deficiencies.
The judge joined the majority position among district courts in the Ninth Circuit, which holds that a procedurally defective removal cannot be cured outside the statutory 30-day window, a view also shared by the Second Circuit.
The court granted Hollingsworth’s motion to remand and denied all other pending motions as moot.
The case is remanded to the Circuit Court of the State of Oregon for the County of Multnomah.