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Eleventh Circuit Adopts Last Served Defendant Rule for Removal

By Amy G. Doehring, Litigation News Associate Editor – October 9, 2008

Weighing in on a long-standing circuit split over when the time for removal runs in a multidefendant suit, the Eleventh Circuit in Bailey v. Janssen Pharmaceutica, Inc. [PDF] has adopted the so-called last-served defendant rule, suggesting that the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. supports that rule.


In Bailey, the plaintiff served the last of four defendants over 30 days after service on the other three defendants. The last-served defendant filed a notice of removal 30 days from the date it was served. Both the district court and the Eleventh Circuit held that the notice of removal was timely because it was filed 30 days after last defendant was served.


This holding is at odds with the Fifth Circuit’s decision in Brown v. Demco, Inc. There, the Fifth Circuit held that the time for removal expires 30 days after the first defendant is served, regardless of whether other defendants have been served. The Fifth Circuit reasoned that the first-served defendant rule was appropriate because removal requires the unanimous consent of all defendants. Once the first-served defendant decides against removal, removal is impossible.


The Fifth Circuit is in the minority on this issue. The Bailey case follows more recent decisions in the Sixth and Eighth Circuits (Brierly v. Alusuisse Flexible Packaging, Inc. and Marano Enterprises of Kansas v. Z-Teca Restaurants, LP [PDF]), which conclude that equity requires that each defendant have 30 days from the date it was served to file a notice of removal. Otherwise, later-served defendants could lose their statutory right to removal before ever receiving process.


The Eleventh Circuit based its Bailey decision in part on its view that the last-served defendant rule is supported by the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. In Murphy Brothers, the Court held that the removal period does not begin until the defendant receives formal process. The Eleventh Circuit reasoned that the Fifth Circuit’s first-served defendant rule is inconsistent with the Murphy Brothers holding because it obligates a defendant to seek removal prior to receiving formal process.


“Given the Murphy Brothers decision and the age of the Fifth Circuit’s decisions, the Fifth Circuit should reevaluate the ‘first-served’ defendant rule, especially in light of its equitable implications,” opines Kent Lambert, a cochair of the ABA Section of Litigation Pretrial Practice and Discovery Committee.


The last-served defendant rule may be fair to defendants, but is it fair to plaintiffs? “A plaintiff who cries foul because its case, which had been litigated in state court for some time, is surprisingly removed to federal court by a later-served defendant may only have itself to blame,” states Michael Kreitzer, Miami, cochair of the Federal Rules Revision Subcommittee of the Section’s Pretrial Practice and Discovery Committee. “The plaintiff is the master of choosing the defendants and the order in which they are served, and if the plaintiff is diligent in identifying potential defendants presuit, then the plaintiff likely would not face the late arrival of a defendant with removal rights.”


 
  • October 15, 2008 – The Eleventh Circuit's ruling seems appropriate. Not only is the plaintiff master of choosing defendants and order of service, plaintiff can name a defendant that plaintiff is "in bed with" and wait for 30 days to serve the adverse defendants under the Fifth Circuit's Brown decision, purposefully eliminating the possibility of removal. The "last-served defendant" rule is the just way to go.
  • October 16, 2008 – If the plaintiff is in bed with a defendant, that defendant can simply withhold consent to removal. The problem with the last served rule is that it essentially extends the thirty day deadline.

 

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