Commercial Litigation and Arbitration

Removal — Fourth Circuit Adopts Last-Served Defendant Rule, Distinguishing Prior Adoption of First-Served Defendant Rule as Dicta

From Barbour v Int’l Union, United Auto., Aerospace & Agricultural Implement Workers of Am., 2010 U.S. App. LEXIS 2389 (4th Cir. Feb. 4, 2010):

The [Plaintiff] Retirees served the International Union with the complaint on March 20, 2008. Local 1183 was served with process on March 29, 2008. On April 28, 2009, more than thirty days after service on the International Union, but within thirty days of service on Local 1183, but before Local 1212 was served, all three defendants filed a joint notice of removal pursuant to 28 U.S.C. §§ 1331, 1337 and 1441 even though Local 1212 had not been served. ***

The statutory basis for removal jurisdiction is found in 28 U.S.C. § 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.

(Emphasis added.) The statute speaks only in terms of a singular defendant and does not explicitly address the timeliness of removal in cases involving multiple defendants, as in the case at bar. ***As a result, our sister circuits have differed in their application of the statute to cases involving multiple defendants.

The Fifth Circuit was the first circuit court of appeals to address the issue in Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986), where it stated that "[t]he general rule . . . is that '[i]f the first served defendant abstains from seeking removal or does not effect a timely removal, subsequently served defendants cannot remove . . . due to the rule of unanimity among defendants which is required for removal." *** Two years later, in Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254 (5th Cir. 1988), the Fifth Circuit expressly adopted what has become known as the "first-served defendant" rule. ***

However, since Getty Oil was decided, three other circuits have rejected this rule in favor of what is generally referred to as the "last-served defendant" rule. See Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. 2008); Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753 (8th Cir. 2001); Brierly [v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999)]. The last-served defendant rule "permits each defendant, upon formal service of process, thirty days to file a notice of removal pursuant to § 1446(b)." ... "Earlier-served defendants may choose to join in a later-served defendant's motion or not, therefore preserving the rule that a notice of removal must have the unanimous consent of the defendants." ***

We conclude, as have many other courts to consider the issue, that any language in McKinney [v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992)] requiring a first-served defendant to have filed a petition for removal within thirty days of being served as a bar to all later-served defendants constitutes non-binding dicta. *** The issue in McKinney was whether the later-served defendants could join in the existing removal petition (to achieve the required unanimity) more than 30 days after the date of service on the first defendants but within 30 days of service upon the later-served defendants. ***

In conclusion, we believe the so-called "McKinney rule" is based on non-binding dicta and the Supreme Court's opinion in Murphy Brothers[, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (holding that each defendant has thirty days to remove starting from the time service of process is effected on that defendant)] counsels a different result. We therefore join the Sixth, Eighth and Eleventh Circuits in adopting the last-served defendant rule and hold 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.

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