The Timeliness of Removal and Multiple-Defendant Lawsuits
Although the procedure for removing cases from state to federal court has existed for nearly 225 years, removal remains one of the most controversial aspects of federal jurisdictional law. Each year, more than 30,000 civil cases are removed from state to federal court, and many of those cases involve more than one defendant. One of the most frequently litigated issues in these cases has involved when the notice of removal must be filed. Prior to a recent amendment, the statute governing removal, 28 U.S.C. § 1446(b), required that a notice of removal be filed within thirty days of service on “the defendant.” Case law also requires all defendants to join in the notice of removal. The issue thus arose: when must the notice of removal be filed if the case involves multiple defendants who were served on different dates? The federal appellate courts have been sharply divided on this issue, with three very differing interpretations of the statute.
This article offers a critical analysis of all three strands of the case law, including three 2011 decisions by federal courts of appeals that take opposing views on the issue. After examining the rationale for each approach, I argue that the rule adopted by the Fourth Circuit—the so-called intermediate rule—offers the best fit with the statute’s language and policy and should be followed in any case governed by former Section 1446(b).
I also examine legislation recently enacted by Congress, the Federal Courts Jurisdiction and Venue Clarification Act of 2011, which has amended Section 1446(b) and codified one of the competing rules, the last-served defendant rule. I identify problems that permanent adoption of this rule will bring about, including significant delays that will occur in some cases in resolving the proper forum. I also identify ambiguities that the new law may create and suggest ways the courts might address those new interpretative issues.
Paul Lund. "The Timeliness of Removal and Multiple-Defendant Lawsuits" Baylor Law Review 64.1 (2012): 50-112.
Available at: http://works.bepress.com/paul_lund/13