Wednesday, March 07, 2007

D. Nevada Discusses Split Re: First and Last Served Defendant Rule Under 28 U.S.C. § 1446; Follows Later Served Rule

Per Coleman v. Assurant, Inc., 463 F. Supp. 2d 1164 (D. Nev. Nov. 21, 2006):

28 U.S.C. § 1441 allows defendants to remove cases from state court to federal court when the federal court has original jurisdiction. . . . The question before the Court is whether the period to remove a case ends thirty days after the first-served defendant, or whether the time period for removal ends thirty days after the last defendant is served. . . .

[R]ecently, circuit and district courts have begun to favor the later-served defendant rule which allows “a later-served defendant [to have] 30 days from the date of service to remove a case to federal district court, with the consent of the remaining defendants.” Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir.1999). . . . In Murphy Bros., the Supreme Court dealt with a somewhat different situation because a solo defendant was faxed a copy of the complaint and then two weeks later was formally served with the complaint. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 348 (1999). The Court began its remarks: “This case concerns the time within which a defendant named in a state-court action may remove the action to a federal court. The governing provision is 28 U.S.C. § 1446(b).” Id. at 347, 119 S.Ct. 1322. The Supreme Court then commenced a lengthy analysis on the “triggering” mechanism of the § 1446(b) time limit. See generally, id.

Although the Supreme Court admittedly focused on the “service or otherwise” language in § 1446(b), the Supreme Court clearly framed its holding: “[W]e hold that a named defendant's time to remove 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.” Id. at 347-48, 119 S.Ct. 1322 (emphasis added). Because of this holding, courts such as the Eighth Circuit, and various district courts, have concluded that the Supreme Court “would allow each defendant thirty days after receiving service within which to file a notice of removal, regardless of when-or if-previously served defendants had filed such notices.” Marano, 254 F.3d at 756.

The Ninth Circuit is clearly aware of the split of authority, but has expressed no opinion to date “on the propriety of either rule.” United Comp. Sys. v. AT & T Corp., 298 F.3d 756, 763 n. 4 (9th Cir.2002). The Circuit itself is split as to which rule should be applied as well. Compare McAnally Enters. Inc. v. McAnally, 107 F.Supp.2d 1223, 1227-29 (C.D.Cal.2000) (applying first-served rule), with Griffith v. Am. Home Prods. Corp., 85 F.Supp.2d 995, 1000-01 (E.D.Wash.2000) (applying the later-served rule). In the past this Court has followed the first-served defendant rule. Biggs Corp. v. Wilen, 97 F.Supp.2d 1040, 1044-46 (D.Nev.2000) (choosing to follow the first-served defendant rule); see also Pic-Mount Corp. v. Stoffel Seals Corp., 708 F.Supp. 1113, 1114 (D.Nev.1989) (holding explicitly that in multiple defendant cases the clock begins to run after the first defendant is properly served with a copy of the initial pleading). However, at the time this Court made its ruling in Biggs, the first-served defendant rule was followed by the majority of courts. Biggs, 97 F.Supp.2d at 1044. Furthermore, both of these Nevada district court cases came before the Eighth Circuit's interpretation of Murphy Bros. in Marano. Therefore, for the reasons stated below, the Court applies the later-served rule in order to promote fairness and a uniform application of 1446(b).


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