Wednesday, October 19, 2011

Third Circuit Joins Majority on Time for Removal

From BNA's U.S. Law Week, Oct. 17, 20100:

The 30-day period under 28 U.S.C. § 1446(b) for filing of the notice of removal of a civil action begins to run separately for each defendant after service upon them of the initial pleading setting forth the claim, the U.S. Court of Appeals for the Third Circuit held Oct. 12. The court, which had not previously addressed the issue in a precedential opinion, noted that Section 1446(b) specifies that the notice be filed “within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting for the claim for relief[.]” Although the Fourth and Fifth Circuits have adopted variations of the” first-served” defendant rule, under which removal by any defendant must occur within 30 days of service on the first-served defendant, the court aligned itself with the Sixth, Eighth, Ninth, and Eleventh circuits, which follow the “later-served” rule under which “each defendant individually has thirty days to file a notice of removal beginning when the particular defendant is served.” Quoting Destfino v. Reiswig, 630 F.3d 952,(79 U.S.L.W. 1965 (9th Cir. 2011) the court favored the “later-served” rule “for reasons grounded in statutory construction, equity and common sense.” Delalla v. Hanover Insurance, 3d Cir., No. 10-3933, 10/12/11.