There has been a long-standing split among the Circuits over when the time for removal runs in a multiple defendant case. The Third Circuit recently followed the Sixth Circuit in adopting the “later-served” rule for removing a case to federal court. See Opinion, Delalla v. Hanover Insurance (3d Cir. Case Nos. 10-3933, 11-1532).
A defendant seeking to remove a lawsuit filed in state court to a federal district court under the federal removal statute, 28 U.S.C. §§ 1441, 1446, must file a notice of removal within thirty days of the date on which the plaintiff serves “the defendant.” The Circuits have been split on interpreting this thirty day requirement. The Fourth and Fifth Circuits have adopted the “first-served” rule, holding that the thirty day period ends thirty days after the first defendant is served. The Sixth, Eighth, Ninth, and Eleventh Circuits, by contrast, have followed the “later-served” rule under which each defendant has a thirty day period to file a notice of removal that ends thirty days after that defendant is served. The Third Circuit in Delalla followed the “later-served” rule because it “represents the most faithful and equitable reading of the removal statute . . . .”
In light of the Third Circuit’s decision, a trend appears to be emerging among the Circuit Courts in favor of the “later-served” rule. But the rule is not without its detractors. One legal commentator claims that the rule “makes no sense” because it “gives a free ride to every defendant but the last defendant.” Others claim it is the right rule because it is the “least susceptible to abuse” by plaintiffs. While the debate will certainly continue, practitioners need to be aware of the relevant rule in their Circuit.
