body { border-style: none; background: Window; color: WindowText; } #ljcutbegin { width: 100%; height: 1px; border: 1px dashed black; } #ljcutend { width: 100%; height: 1px; border: 1px dashed gray; } blockquote { border-left: 3px solid silver; padding-left: 10px; margin-left: 10px; } .bjspell { border-bottom: 1px dotted red; } }I hope everyone has enjoyed a safe and happy Fourth of July weekend.

Let me try and ease you back into the work week with a discussion about a Fourth Circuit decision issued a few months ago, which addressed the timeliness of a removal petition involving multiple defendants, and which fellow West Virginia blogger Brian Peterson discussed on his West Virginia Legal Weblog.

As you probably know, removal is the procedure by which one or more defendants transfer an action filed in state court to federal court, based on diversity jurisdiction, federal question jurisdiction, or federal preemption.   

The removal statute, 28 U.S.C. § 1446, provides that:

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.

But how do you determine when a removal petition is timely if there are multiple defendants, who will rarely be served simultaneously? Do you calculate the 30-day limit based on when the first defendant was served, when the last defendant served, or something in between? 

In Barbour v. International Union, 594 F.3d 315 (4th Cir. 2010), the Fourth Circuit answered the question by going with the last-served defendant, although the opinion is a little convoluted (and includes a detailed discussion of what constitutes dicta in a decision. So for those of you who have been waiting for a detailed discussion of dicta,  your wait is over.

In Barbour, the plaintiffs sued three defendants, an international union and two of its local unions. The international union was served on March 20, 2008 and one of the locals was served on March 29, 2008. On April 30, 2008, all three defendants filed a joint notice of removal, even though the other local union had not been served.

The plaintiffs moved to remand on the grounds that the removal was not timely. (They also challenged the basis for federal jurisdiction, which I will not address, although that ended up being the basis for the circuit court’s decision that remand was appropriate.) The district court denied the motion to remand and the motion for reconsideration and expressed its belief that the case represented an "excellent opportunity for the Fourth Circuit to clarify whether the ‘first-filed’ ‘dictum’ in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say."

The "first-filed" "dictum" in McKinney referred to this language in footnote 3:

[W]here B is served more than 30 days after A is served, two timing issues can arise, and the law is settled as to each. First, if A petitions for removal within 30 days, the case may be removed, and B can either join in the petition or move for remand. See 28 U.S.C.§ 1448. Second, if A does not petition for removal within 30 days, the case may not be removed.

(Emphasis in original.)

So according to McKinney, the removal petition filed by the Barbour defendants would not be timely because the international union, as the first-served defendant, did not petition for removal within 30 days.

But the Barbour court regarded the McKinney language as non-binding dicta, and that since McKinney, the United States Supreme Court had decided Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999). Plus, the defendants served first in McKinney had timely filed their notice of removal within 30 days of being served, so the issue there was whether the defendants who were served later could join in the removal to make it unanimous, even if their agreement came more than 30 days after the first defendants were served, but within 30 days of service on the later-served defendants.

The Barbour court was also persuaded by decisions from the Sixth, Eighth, and Eleventh Circuits, all of which had held that the last-served defendant was preferable.

The court was also concerned that:

Under either the pure first-served defendant rule or the McKinney rule, Local 1212’s [the later-served local] right of removal would have been waived by the International Union’s failure to file a notice of removal within 30 days of being served even though it was not yet within the court’s jurisdiction. Such prejudice to Local 1212’s rights would violate the spirit, if not the letter, of the "bedrock principle" that "a defendant is not obliged to engage in litigation unless notified of the action and brought under a court’s authority, by formal process."

Consequently, the court adopted the last-served defendant rule and 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 a footnote to the excerpt above, the court addressed the concern that a plaintiff may have that multiple defendants are receiving an unfair number of opportunities to remove an action:

In our view, this rule does not work an injustice on a plaintiff who, by serving the defendants as contemporaneously as possible, can minimize any significant disruption, either to their case or proceedings in the state court. Thus, while any such burden is minimal, all defendants have their opportunity to remove the case protected. See Stravitz, supra, at 210 ("[T]he only rule that balances plaintiff-oriented policies of unanimity and timelessness with a defendant’s procedural right to remove is the true last-served defendant rule ….").

Emphasis in original.

I think the operative words in the footnote are "by serving the defendants as contemporaneously as possible," which seems to imply that an injustice may occur if a plaintiff doesn’t serve the defendants contemporaneously. Sometimes, it may not be desirable or possible to serve all the defendants contemporaneously, in which case the later-served defendant rule enables a defendant that may have wanted to remove the action, but didn’t to have another chance to do so.