30 Day Removal in Federal Court
According to 28 USC §1446(b), a defendant has 30 days from the service of summons to remove the case to federal court. The case cannot be removed unless all the defendants consent to removal. However, Section 1446 does not address whether a later served-defendant in a multiple defendant case can obtain consent for removal from any previously served defendant whose 30 day time limit has expired. So the question becomes, when does the 30 day countdown start running? Some courts have adopted the “first-served defendant” rule, where notice of removal must be filed within 30 days of service on the first-served defendant. However, courts are split on the issue.
In Seabright Insurance Company v. JLG Industries, No. 11 C 2424 (June 20, 2011, N.D. Ill.) , Seabright, the later-served defendant filed a notice of removal 33 days after the first defendant was served. U.S. District Judge Kennelly adopted the “later-served defendant” rule. Applying the rule to the case, the court held that even if the first-served defendant was 3 days past the 30 day deadline, the later served defendant is able to file a notice of removal within its own 30 day window with the consent of all the defendants.
The court stated that the “later-served defendant” rule more appropriately effectuates Section 1446, which uses the phrase “….shall be filed within 30 days after the receipt by the defendant.” The court reasoned that this language allows each defendant, on a defendant-by-defendant basis, to remove an action from state to federal court regardless of what the earlier served defendant did. The court explained, if the “first-served defendant” rule is used, a later-served defendant might be deprived of the ability to remove the case, which is contrary to the language of Section 1446.
The plaintiff argued that the “later-served defendant” rule gives the first-served defendant, whose 30 day deadline expired, another bite at the apple. The court disagreed. The first-served defendant only has the ability to consent after its time has expired because of the unanimity requirement, not the ability to remove the case. More so, if the “first-served defendant” rule was used, a plaintiff would be able to preclude removal to federal court by manipulating the timing of service on each defendant. Lastly, dockets are often updated slowly. Defendants not yet served would either be unaware of any previous service of summons or be forced to track down earlier served defendants in order to get a sense of timing.
