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4th Circuit strictly construes removal deadline where multiple defendants are served

Written by Raphael J. Cohen. Posted on 02/08/2011.

The procedure for removal of a state law claim to federal court is usually simple. After the defendant is served with the complaint, she has 30 days to file a notice of removal, or the case remains in state court. 28 USC sec. 1446. But what if there are multiple defendants who are served with the complaint on different days? For example, say Defendant A is served on Wednesday, and Defendant B is served on Friday. When does the removal clock start ticking?

The Court of Appeals for the Fourth Circuit addressed this question in a recently issued opinion. Barbour v. International Union, Case No. 08-1740 (January 28, 2011). In Barbour, 23 retired autoworkers filed suit in Maryland Circuit Court, alleging that their unions had breached fiduciary duties. One defendant was served with the complaint on March 20, 2008; the other was served nine days later. Both defendants filed a notice of removal on April 28, 2008 -- more than 30 days after the first defendant was served, but less than 30 days after the second defendant was served.

The court held the notice of removal was not timely filed, and remanded the case to state court. Following the so-called "McKinney Intermediate Rule," the court explained the governing standard as follows: if the first defendant timely files a notice of removal, then subsequent defendants can join in the notice of removal within 30 days after they are served. However, if -- as was true in Barbour -- the first defendant does not timely file a notice of removal, all defendants are forever barred from seeking removal. The first defendant is barred because he missed the removal deadline. Later defendants are barred under rule of unanimity, which requires all defendants to join in a notice of removal. Since the first defendant is precluded from joining in the notice of removal under the statutory deadline, the case cannot be removed by other defendants.

The takeaway from this ruling is that if the first defendant does not promptly file a notice of removal, later-served defendants may be foreclosed from removing to federal court. Defendants sued in state court should not assume that they have thirty days to make a decision regarding removal. If another defendant has already been served, later defendants will have to act quickly to preserve their rights, or may not be able to seek removal at all.

That said, the Barbour decision is controlling only in the 4th Circuit. Other federal Courts of Appeals have adopted different interpretations of the removal statute. While the Court of Appeals for the D.C. Circuit has not yet addressed this question, two District Court decisions have followed the approach taken by the 4th Circuit in Barbour. Princeton Running Co. v. Williams, 2006 U.S. Dist. LEXIS 62622 (D.D.C. 2006); Phillips v. Corr. Corp. of Am., 407 F. Supp. 2d 18 (D.D.C. 2005).