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Ninth and Fourth Circuits Highlight Split over Removal Deadline

By Sara E. Costello, Litigation News Associate Editor – April 19, 2011

Recent decisions from the U.S. Court of Appeals for the Ninth Circuit and the Fourth Circuit draw attention to the circuit split on how to calculate the 30-day deadline for removal in cases with multiple defendants served at different times. Under 28 U.S.C. § 1446(b), a notice of removal from state court to federal court must be filed “within thirty days after the receipt by the defendant . . . of a copy of the initial pleading.”

The Sixth, Eighth, and Eleventh Circuits have adopted the last-served rule. That rule permits each defendant 30 days after being served to remove a case. Once a notice of removal has been filed, the rule allows earlier-served defendants an opportunity to join or consent in removal.

In contrast, the Fifth Circuit applies the first-served rule. Under the first-served rule, as soon as the first defendant is served, the 30-day period starts to run for all defendants.

The Ninth Circuit Adopts the Later-Served Rule
In Destfino v. Reiswig [PDF], the Ninth Circuit held that “each defendant is entitled to thirty days to exercise his removal rights after being served.” Although the Ninth Circuit described its approach as the later-served rule, the court did not directly distinguish its rule from the last-served rule.

According to the Ninth Circuit, the later-served rule is “the fairest reading of the statute” and “the wiser and more equitable approach.”

To support its holding, the Ninth Circuit noted that the “Supreme Court has recently relaxed its presumption against removal” in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., “by allowing a defendant to remove even though he didn’t do so within thirty days of receiving a faxed courtesy copy of the complaint.” The court rejected the first-served rule because it “could deprive some defendants of their right to a federal forum because they were served too late to exercise that right.” It would “encourage plaintiffs to engage in unfair manipulation by delaying service on defendants most likely to remove.”

The Fourth Circuit Adheres to an Intermediate Approach
Shortly after Destfino was issued, the Fourth Circuit considered a similar question regarding the removal deadline. In Barbour v. International Union [PDF], the Fourth Circuit, ruling en banc, adhered to an intermediate approach to the “defendants-served-on-different-days dilemma.”

The intermediate approach “requires a notice of removal to be filed within the first-served defendant’s thirty-day window, but gives later-served defendants thirty days from the day they were served to join the notice of removal.” In the Fourth Circuit’s view, the intermediate approach represents “the most logical and faithful interpretation” of the statute. It “avoids the fatal flaw” of only applying the statute “to one defendant—the last-served.” The court noted that “[a] single defendant who deliberately chooses not to remove a case cannot change his mind after the thirty-day window closes.” That defendant should not get another “bite at the apple” simply because he is the first-served defendant in a multiple-defendant case. The court also noted that this approach follows the Supreme Court’s instructions to “construe removal statutes narrowly” and resolve doubts about removal “in favor of state court jurisdiction.”

Section Leaders Weigh In
The Fourth Circuit “presents a rational approach” to calculating the removal deadline, says Gregory P. Joseph, New York City, past chair of the ABA Section of Litigation. “The last-served rule makes no sense,” he explains. It “gives a free ride to every defendant but the last defendant.”

Taking an opposing view, James W. Shelson, Jackson, MS, vice-chair of the Section of Litigation’s Trial Practice Committee, believes the last-served rule is the best approach. The last-served rule is the “most consistent with Murphy Bros.” and is the “least susceptible to abuse” by plaintiffs, he notes.

Supreme Court Review Likely
The Supreme Court will resolve the questions about the removal deadline, Joseph predicts. The issue will be attractive to the Supreme Court because “it’s important, involves straight-forward statutory interpretation, and there is a circuit split.”

The Supreme Court should “rectify the split,” agrees Betsy P. Collins, Mobile, AL, cochair of the Section’s Pretrial Practice and Discovery Committee. Based on the Supreme Court’s ruling in Murphy Bros., the last-served rule will ultimately be adopted, she believes.

Keywords: litigation, removal, circuit split, civil procedure


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