Friday, January 28, 2011

Fourth Circuit abandons last-served defendant rule in en banc decision

In Barbour v. Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am., No. 08-1740 (4th Cir. Jan. 27, 2011), the Fourth Circuit sitting en banc, has finally settled the question of how to calculate the 30-day removal time period in multiple defendant cases.

Astute readers may recall that the court decided this case in February 2010.  However, the decision was vacated a few months later when a petition for rehearing was granted.

Now, the Fourth Circuit has reversed course and held that the last-served defendant rule is not the correct interpretation of our removal statutes.

Instead it has adopted what is commonly referred to as the "McKinney Intermediate Rule." Senior Judge Hamilton, writing for the majority, explained that
Like the First-Served Defendant Rule, the McKinney Intermediate Rule 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 date they were served to join the notice of removal. 
Judge Hamilton, incidentally, wrote the dissent in the February 2010 decision.  His new 32-page majority opinion was not, however, unanimous.  In a 36-page concurring opinion authored by Judge Agee, five judges dissented to the adoption of a First-Served Defendant Rule, of which the McKinney Intermediate Rule is a variety.  The minority "believe[d] the last-served defendant rule represents the more accurate and appropriate reading of the terms of 28 U.S.C. § 1446(b)."  Nevertheless, they concurred in the remand of the case on jurisdictional grounds.

So much for the last-served defendant rule.  We hardly new ye.