Introduction
Recent court decisions have caused confusion regarding when the 30-day deadline for removing a case to federal court begins to run in cases involving multiple defendants. During the last week of January, the Fourth and Ninth Circuits issued decisions interpreting the 30-day requirement in vastly different ways. The Ninth Circuit adopted the more popular "later-served rule," which affords each defendant 30 days after being served to remove a case to federal court and allows any defendant to join in any other defendant's notice of removal. In contrast, the Fourth Circuit adopted an "intermediate" approach, which requires any defendant to remove a case within 30 days of the first defendant's service, but allows each later-served defendant 30 days from receipt of service to join an earlier-served defendant's removal. With such disparity in interpreting the 30-day removal deadline in multi-defendant cases, it is even more important now to quickly ascertain whether removal is appropriate upon service of a complaint.
Background
Any "action brought in a State court of which the district courts of the United States have original jurisdiction" is removable to federal court, provided the defendant files notice of removal in a timely manner.1 To be timely, the notice must be filed within 30 days after the defendant either received a copy of the initial pleading or was served.2 Although this deadline is seemingly clear, determining when the 30-day period begins to run in a case where multiple defendants were served on different days can be difficult.3 For example, does "receipt by the defendant" mean receipt by the first defendant or by each defendant? If it means the first defendant, then later-served defendants in multi-defendant cases will be unfairly impacted by the shorter period for removal. If it means each defendant, then plaintiffs must endure a prolonged period of uncertainty as to where their claims will be litigated. Various circuits have answered this question with vastly different results.
Circuit Split
Removal-friendly jurisdictions following the "later-served rule" include the Sixth, Eighth, Ninth, and Eleventh Circuits.4 In these circuits, each defendant has the opportunity to remove the case within 30 days of having been served. Thus, each defendant has its own 30-day window of opportunity, regardless of when other defendants were served.5 Earlier-served defendants may also join in any subsequent notice of removal, even after their own 30-day window expires. These jurisdictions afford more time and leniency to defendants in multi-defendant cases seeking to remove the case to federal court.
In contrast, defendants in the Fifth Circuit are subject to the stringent "first-served rule."6 In this jurisdiction, defendants must file a notice of removal within 30 days of the first defendant's service. This deadline applies not only to the filing of a notice of removal but also to the joining of another defendant's notice of removal. As a result, the deadline for both filing and joining a notice of removal is triggered by service on the first defendant, and the remaining defendants' "30-day" window is less than 30 days.
The Fourth Circuit sitting en banc recently created a middle approach.7 Like the Fifth Circuit, the Fourth Circuit requires that later-served defendants must file a notice of removal within 30 days of service on the first defendant. However, unlike the Fifth Circuit, the Fourth Circuit allows defendants a 30-day window from the date of their own service to decide whether to join another defendant's earlier notice of removal. This "intermediate" rule has not yet been adopted by any other circuit.
Practical Implications
For circuits outside the Fourth, Fifth, Sixth, Eighth, Ninth, and Eleventh, it remains unclear how they will interpret the 30-day deadline. Until recently, the "later-served rule" seemed to be gaining momentum.8 Now that the Fourth Circuit has created an "intermediate" rule while the Ninth Circuit recently reaffirmed the "later-served rule," defendants in multiple defendant cases must be aware of the varying interpretations of the removal deadline. Until the Supreme Court settles the issue, the safest practice to ensure timely removal is to file or join a notice of removal within 30 days of the first defendant's service.
Footnotes
1. 28 U.S.C. § 1441(a).
2. 28 U.S.C. § 1446(b).
3. Bailey v. Janssen Pharm., Inc., 536 F.3d 1202, 1205 (11th Cir. 2008).
4. Destfino v. Reiswig, --- F.3d ----, 2011 WL 182241, *3 (9th Cir. Jan. 21, 2011); Bailey, 536 F.3d at 1205; Marano Enter. of Kansas v. Z-Teca Rest., L.P., 254 F.3d 753, 757 (8th Cir. 2001); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 14–15 (6th Cir. 1999).
5. Marano, 254 F.3d at 756–57.
6. Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986).
7. Barbour v. International Union, --- F.3d ----, 2011 WL 242131 (4th Cir. Jan. 27, 2011). The Fourth Circuit had previously adopted an "intermediate" rule in dicta that at least one district court declined to follow. See McKinney v. Bd. of Trustees of Md. Cmty. Coll., 955 F.2d 924 (4th Cir. 1992); Ratliff v. Workman, 274 F. Supp. 2d 783, 787 (S.D.W.Va. 2003).
8. Bailey, 536 F.3d at 1205 (observing that "the trend in recent case law favors the last-served defendant rule").
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