Commercial Litigation and Arbitration

30 Days to Remove — 30 Days from When?

There is a split in the Circuits as to whether the 30-day time period for removal set forth in 28 U.S.C. § 1446(b) commences on the date of service of the first defendant or the last. This is a function of the text of § 1446(b), which provides:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

The ambiguity lies in the reference to ‛the defendant,“ which does not address the multi-defendant scenario. The Supreme Court has not yet addressed the first- vs. last-served issue. As tallied by District Judge Dana M. Sabraw in Lear v. Louisville Ladder, Inc., 2007 U.S. Dist. LEXIS 75008 (S.D. Cal. Oct. 9, 2007), the Fifth Circuit adheres to the first-served rule (Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986)) while the Sixth and Eighth have adopted the last-served rule (Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 532 (6th Cir. 1999); Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P., 254 F.3d 753 (8th Cir. 2001)). Judge Sabraw, unencumbered by Ninth Circuit precedent, ‛considered the competing rationales for each rule, and f[ound] the rationales behind the ‘last-served’ rule more persuasive."

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