Removal — Fourth Circuit Declines to Adopt Last-Served Defendant Rule, Adheres to Intermediate Rule, Requiring the First-Served Defendant to Remove within 30 Days and Every Later-Served Defendant to Do So, Too

From Barbour v. Int’l Union, UAW, 2011 U.S. App. LEXIS 1695 (4th Cir. Jan. 27, 2011) (en banc) (Note: this decision reverses the panel decision summarized in our post of February 8, 2010):

Section 1446 of Title 28 describes the appropriate removal procedure to invoke federal jurisdiction, and requires the defendant seeking removal to file a timely notice of removal stating the grounds for removal with the appropriate federal district court. *** In order to be timely,

[t]he 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 . . . .

Id. § 1446(b). ***

If a case involves a single defendant, the operation of § 1446(b) is straightforward. The defendant must file the notice of removal within thirty days of service. When a case involves multiple defendants, the operation of § 1446(b) gets precarious, because, unlike § 1446(a), § 1446(b) does not speak in terms of multiple defendants. Clearly, if all of the defendants are served on the same day, the notice of removal must be filed within thirty days of the date of service, and all the defendants must consent to and join the notice of removal. *** However, if the defendants are served on different days, two questions arise. First, must the notice of removal be filed within thirty days of service on the first-served defendant or can the notice be filed within thirty days of service on the last-served defendant? Second, if the notice of removal must be filed within thirty days of service on the first-served defendant, do all of the defendants have to join the notice within thirty days of service on the first-served defendant or can each defendant join within thirty-days of the date they are served?***

Like the First-Served Defendant Rule, the McKinney [McKinney v. Board of Trustees of Mayland Community College, 955 F.2d 924 (4th Cir. 1992)] 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. ***

Since our decision in McKinney, three other circuits have addressed the defendants-served-on-different days dilemma and have rejected the First-Served Defendant Rule and the McKinney Intermediate Rule in favor of what is commonly referred to as the "Last-Served Defendant Rule." See Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1209 (11th Cir. 2008); Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 757 (8th Cir. 2001); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999). In a nutshell, 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)," *** and "[e]arlier-served defendants may choose to join in a later-served defendant's motion or not." ***

In our view, the McKinney Intermediate Rule is the most logical and faithful interpretation of the operation of § 1446(b). When interpreting any statute, we must first and foremost strive to implement congressional intent by examining the plain language of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S. Ct. 941, 151 L. Ed. 2d 908 (2002). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997).

Section 1446(b) says that if you are a defendant in a cause of action you are under an obligation to seek removal within thirty days of receipt of the plaintiff's complaint. If you do not seek removal within the thirty-day window, you have forfeited your right to remove. ***

The question, then, is whether we should decline to follow the plain language of § 1446(b) simply because there is more than one defendant in the case who was served on a different day. In our view, it defies logic to read § 1446(b) any differently based on this circumstance, because the language of § 1446(b) unequivocally requires action by a defendant (seeking removal within thirty days of being served), not inaction. Equally illogical is the proposition that a first-served defendant in a multiple-defendant case should believe he or she does not have to act simply because there will be later-served defendants in the case who may or may not file a notice of removal. In such a scenario, the first-served defendant's excuse for failing to file a timely notice of removal borders on preposterous — "I did not file a notice of removal because I was 'a' defendant instead of 'the' defendant." The McKinney Intermediate Rule obviously avoids the fatal flaw in the Last-Served Defendant Rule: The Last-Served Defendant Rule only applies § 1446(b) to one defendant—the last-served. Innumerable defendants can intentionally ignore § 1446(b) if the last-served defendant can convince the earlier-served defendants that their intentional decision was in error. It strains credulity to conclude that Congress intended to allow defendants to flagrantly ignore § 1446(b).

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