Fourth Circuit Clarifies Removal Process


The Fourth Circuit Court of Appeals has recently clarified its interpretation of the procedure for removing a case to federal court in Barbour v. International Union, No. 08-1740, 2011 WL 242131 (4th Cir. Jan. 27, 2011). Courts strictly construe the removal statutes, 28 U.S.C. §§ 1441 and 1446, to limit the jurisdiction of federal courts. Doubts about the propriety of removal are resolved in favor of remanding the case to state court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc). Therefore, a defendant’s failure to comply with the statutes’ requirements—and the relevant jurisdiction’s interpretation of those statutes—can defeat removal on technical grounds and keep the case in state court.

Section 1446 requires a defendant to remove a case within 30 days of being served with the complaint. When there is only one defendant this procedure is straightforward: when there is more than one, the situation is more complicated. Courts have universally applied the “rule of unanimity,” which requires all defendants in an action to formally “join in or consent to the notice of removal, otherwise the removal is defective.” See Getty Oil, Div. of Texaco, Inc. v. Ins. Co. of North Am., 841 F.2d 1254, 1262 (5th Cir. 1998). Some courts have recognized exceptions to this rule where (1) the non-joining defendant has not been served; (2) the non-joining defendant is merely a nominal or formal party; or (3) the removed claim is independent. Parker v. Johnny Tart Enterprises, Inc., 104 F. Supp. 2d 581, 584 (M.D. N.C. 1999).

The Fourth Circuit recently confirmed its long-standing position, which differs from every other Circuit that has addressed the issue, that the consent or joinder in the removal be simultaneous. In 1992, the Fourth Circuit articulated the “McKinney Intermediate Rule” in a footnote, which provided that “where B is served more than 30 days after A is served, . . . if A petitions for removal within 30 days, the case may be removed, and B can either join in the petition or move for remand, [but] . . . if A does not petition for removal within 30 days, the case may not be removed.” McKinney v. Board of Trustees of Maryland Comm. College, 955 F.2d 924, 926 n.3 (4th Cir. 1992).

The McKinney rule varies markedly from the rules applied in other Circuits. The Fifth Circuit maintains the “First-Served Defendant Rule,” whereby the removal notice must be filed within 30 days of the first defendant receiving service, and all then-served defendants must join in that filing in order for it to be effective, even if they were served with the complaint the day before the 30-day window expired. The Sixth, Eighth, Ninth (as of this January) and Eleventh Circuits follow the “Last-Served Defendant Rule,” which allows any defendant to file a notice of removal within 30 days of being served. Under this interpretation, even if the earlier-served defendants chose not to seek removal within 30 days of service, a later-served defendant can try to persuade them to join its removal petition.

In the recent 7-5 en banc decision, Barbour v. International Union, No. 08-1740, 2011 WL 242131 (4th Cir. Jan. 27, 2011) (en banc), the Fourth Circuit reaffirmed its unique interpretation of section 1446. It explained that the “First-Served Defendant Rule” was too narrow, and the “Last-Served Defendant Rule” was too broad, and that both interpretations fail to follow the plain language of section 1446. Barbour, 2011 WL 242131, at *5-15. The “First-Served Defendant Rule” fails to give later-served defendants the full 30 days to decide upon removal provided in § 1446, and it potentially conflicts with subsequent Supreme Court precedent holding that the 30-day window does not begin to run until a defendant receives formal service of process. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999) (requiring formal service to trigger the removal window in a single-defendant case). The “Last-Served Defendant Rule” fails to require earlier-served defendants to comply with the strict 30-day requirement of section 1446, in effect giving them a second bite at the apple if a later-served defendant pursues removal.

In contrast, the Fourth Circuit’s “McKinney Intermediate Rule” gives each defendant the 30 days provided under the statute to decide whether or not to join an already-filed petition for removal. Proponents of the “Last-Served Defendant Rule” have argued that this penalizes later-served defendants because they do not have the option of attempting removal if the earlier-served defendants chose not to seek removal. Opponents counter that this “penalty” is not really one because the rule of unanimity requires that consent anyway.

In the Fourth Circuit, Barbour clarifies that each defendant must formally join in or consent to removal within 30 days of being served. Otherwise, the defendants forfeit their right to remove, and a plaintiff may move for remand back to state court for good.

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