Eleventh Circuit Adopts Last-Served Defendant Rule for Removal to Federal Court

Wilkie D. Ferguson Jr. U.S. Federal Courthouse in MiamiDefendants 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.

Miami Employer Defeats Direct Evidence on Motion for Summary Judgment

Jackson Memorial FoundationDirect evidence of discrimination is evidence that, if believed, would prove the existence of a fact without inference or presumption.  For example, in an age discrimination case, a statement by a supervisor during a termination meeting that he needs "someone younger" would likely be deemed direct evidence of age discrimination.

That was what the plaintiff in a recent case alleged her supervisor at Jackson Memorial Foundation told her during her termination meeting.  She brought suit under the Age Discrimination in Employment Act in a Miami federal court.  Following discovery, JMF moved for summary judgment, arguing that it had overwhelming evidence that the termination was made for legitimate, nondiscriminatory reasons, notwithstanding the alleged direct evidence. 

U.S. District Judge Joan Lenard agreed and granted JMF's motion. "The fact that a plaintiff has established a prima facie case under the ADEA with direct evidence... does not in and of itself warrant summary judgment against an employer," wrote Judge Lenard.  "As such, the Court rejects Plaintiff’s argument that Defendant’s 'concession that [Plaintiff] has direct evidence of age discrimination is itself sufficient to create a genuine fact issue necessitating a trial.'  Rather, in the face of direct evidence, the burden then shifts to an employer to prove that the same challenged employment decision would have been made absent any discriminatory intent." 

Judge Lenard then spent three pages describing the undisputed evidence of the plaintiff's unsatisfactory work performance and conduct, which led to a decision to terminate the plaintiff in January 2006, several months before the alleged discriminatory remark was made.  "There is simply no evidence," Judge Lenard concluded, "that the decision to terminate Plaintiff in January of 2006 was motivated by anything other than [the supervisor's] dissatisfaction with Plaintiff’s work performance and conduct." 

Congratulations to defense counsel, my partners Mike Casey and Kevin Vance , on this hard-fought victory. 


Broward County Human Rights Board is Not a State Court for Removal Purposes

The title of this posting may strike you as obvious, but it's not that simple.  An employer recently removed to the Southern District of Florida federal court a case that was pending before the Broward County Human Rights Board.  The employer argued that the Board was a state court and that removal was proper under federal question jurisdiction because the charging party alleged discrimination under Title VII as well as the the Florida Civil Rights Act and the Broward County Human Rights Act.  The Board moved to remand.  Judge Cecilia Altonaga took the employer's arguments seriously enough to issue a detailed opinion, but ultimately concluded that remand was proper under the "functional" test that federal courts have adopted to determine whether a state tribunal is the functional equivalent of a state court. The Board lacks enforcement power, Judge Altonaga noted, and this distinguishes it from a court.  In addition, Judge Altonaga reasoned, "there is a specific interest... for states and localities, such as Broward County, to provide civil rights protections and enforcement procedures beyond those provided by the federal government."  Judge Altonaga also noted that the Board decision was reviewable in Broward County Circuit Court, and once in that court, the employer could remove the case to federal court.  The name of the case is Civil Rights Division v. Asplundh Tree Expert Co. It is reported at 21 Fla. L. Weekly Fed. D265a.