Eleventh Circuit Adopts Last-Served Defendant Rule for Removal to Federal Court
Defendants in employment-related cases typically prefer to litigate their disputes in federal court, if at all possible. And for good reason: federal judges are far more likely to dismiss cases on summary judgment than their state court brethren.
Generally defendants can remove cases from state to federal court if the complaint contains a federal claim, or if there is complete diversity of citizenship among the parties (i.e., none of the plaintiffs in a case can be from the same state as any of the defendants) and the amount in controversy exceeds $75,000, exclusive of interest and costs.
Defendants who wish to remove a case to federal court ordinarily must do so within 30 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 . . . ." 28 U.S.C. §1446(b).
The Supreme Court held in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S. Ct. 1322, 1325 (1999), that the 30-day period in § 1446(b) “is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.”
But in cases where there are multiple defendants, does each defendant have 30 days to remove the case, or does the 30-day period run from receipt of service by the first-served defendant only?
That was an open question in the Eleventh Circuit (which covers Florida, Georgia and Alabama) until a recent decision, Bailey v. Janssen Pharmaceutica, Inc., Case No. 06-80702-CV-KLR (11th Cir., July 29, 2008). In Bailey, the court adopted the "last-served defendant" rule, which means that each defendant has 30 days to remove the case.
In reaching its decision, the court noted that although courts are divided on this issue, "the trend in recent case law favors the last-served defendant rule." Moreover, the first-served defendant rule is "inequitable to later-served defendants who, through no fault of their own, might, by virtue of the first-served rule, lose their statutory right to seek removal."
Thanks to my partner Joe Klock for bringing the Bailey decision to my attention. (I missed it when it was released in July.) Although Bailey is not an employment-related case, all employment lawyers practicing in the Eleventh Circuit should be aware of its holding.
