Sunday, February 07, 2010

Fourth Circuit adopts "last served defendant" rule in removal cases

Note:  A petition for rehearing in this case was granted, and the Fourth Circuit has issued an en banc opinion that nullifies this one.

In Barbour v. Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am., No. 08-1740 (4th Cir. Feb. 4, 2010), the Fourth Circuit finally settled the question of how to calculate the 30-day removal time period in multiple defendant cases.  Following the holdings of the Sixth, Eighth and Eleventh Circuits, the court held that:
in cases involving multiple defendants, each defendant, once served with formal process, has thirty days to file a notice of removal pursuant to 28 U.S.C. § 1446(b) in which earlier-served defendants may join regardless of whether they have previously filed a notice of removal.
In so holding, the Court rejected as dictum footnote 3 of McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992) which explained that where the first-served defendant "does not petition for removal within 30 days, the case may not be removed." 955 F.2d at 926 n.3.  The court found the rule to be inconsistent with more recent Supreme Court precedent.  In Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) the Supreme Court was asked to determine "whether the named defendant must be officially summoned to appear in the action before the time to remove [under 28 U.S.C. § 1446(b)] begins to run." Murphy Brothers, 526 U.S. at 347. The Court held "that a named defendant’s time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Id. at 347-48.

Applying the new rule in this three-defendant case, the court found timely the parties' joint notice of removal, which was filed by all three defendants after two defendants were served, even though it was filed more than 30 days after the first defendant was served.

Senior Judge Hamilton disagreed, and offered in his pointed dissenting opinion that McKinney was binding precedent, and that Murphy Brothers was not applicable because it did not involve a multiple defendants.