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It hurts even to type these words: “Nearly twenty years ago, we wrote . . . .”
Sadly, it’s true. In the December 11, 1989, issue of Legal Times (at page 31), one-half of your dynamic blogging duo deplored a holding then common in federal courts.
The governing statute requires that a notice of removal 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 . . . . ” 28 U.S.C. Sec. 1446(a). In most situations, defendants must unanimously consent to remove a case to federal court for removal to be proper.
This raises an issue when the plaintiff staggers service of the complaint on multiple defendants. What happens if plaintiff serves the first defendant on January 1, the second on January 15, and the third on February 15? If the first-served defendant didn’t remove the case by January 31 (within 30 days of service on it), can the last-served defendant still remove in late February or early March?
When we wrote about this 20 years ago, courts were generally holding that a first-served defendant’s failure to remove barred removal by the last-served defendant. After all, these courts reasoned, consent to removal must be unanimous; if the first-served defendant opposes removal, then the last-served defendant can’t remove anyway, because unanimous consent to removal is lacking.
One of the leading commentators (Moore’s Federal Practice) agreed with this view.
But other leading commentators begged to differ. Wright & Miller argued that the later-served defendant deserves the right to try to convince the earlier-served defendant to consent to removal. If the first-served defendant is indifferent to whether it litigates in state or federal court, that indifference should not waive the later-served defendant’s right to remove.
(When Moore and Wright & Miller disagree on a subject, you know you’re in trouble. Back when we were in law school, we felt the same angst when Professors Sum and Substance couldn’t agree on a legal point.)
In the last 20 years, courts have come full circle.
The Wright & Miller view (which is the one that we prefer) now seems to be carrying the day.
In Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. July 29, 2008), plaintiff brought a wrongful death action on behalf of a person who allegedly died of fentanyl toxicity after using a prescription patch. Plaintiff served the first defendant on May 12, 2006, the second on May 15, the third on May 19, and the last (Johnson & Johnson) on June 22. Johnson & Johnson removed within 30 days of service on it, which was necessarily more than 30 days after service on the first-served defendant.
The trial court denied a motion to remand; the Eleventh Circuit affirmed. Four courts of appeals had addressed this issue before the Eleventh Circuit reached it. The two appellate decisions adopting the “first-served defendant” rule, however, are “more than fifteen years old.” Id. at 9. “Conversely, the two courts among the circuit courts to have adopted the last-served defendant rule have done so far more recently.” Id. That, combined with an intervening Supreme Court decision (Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)) and Wright & Miller’s policy argument, convinced the Eleventh Circuit to adopt the last-served defendant rule.
That’s three circuit courts in a row, and a clean sweep over the last 15 years, coming down on the same side of the issue.
It was a long time coming, but it looks as though the law has finally come down the way we prefer: Late-served defendants will probably have thirty days after service on them to effect removal to federal courts.