Civil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun–if dense–opinion handed down on Thursday, the Fourth Circuit adopts the “last-served defendant” rule for removal. Or in geekspeak, it takes a district court up on its invitation “to clarify whether the ‘first-filed’ ‘dictum’ in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say.”
Short answer: it doesn’t. But before we get there, the Fourth Circuit walks us through some removal case law, considers the extent to which earlier panel decisions are binding, and honors the nerdly virtues of close reading and careful research.
A quick refresher, for those of us who slept through civ pro: under 28 U.S.C. 1446, a defendant has 30 days in which to file a notice of removal. But what if there are multiple defendants, and they are served more than 30 days apart? That’s what happened to the defendant unions in Barbour. All three defendants filed a joint notice of removal. They filed it more than 30 days after the first defendant was served, but less than thirty days after the second defendant was served, and before the third defendant was even brought into the case. Was the notice of removal timely?
Turns out there’s a Circuit split on that point. The Fifth Circuit applies a “first-served defendant” rule: in cases involving more than one defendant, the thirty days starts running when the first defendant is served. The Fifth Circuit reasons that, since all served defendants must join in the removal petition, the failure of the first defendant to remove within 30 days defeats removal altogether.
The Sixth, Eighth, and Eleventh Circuits, by contrast, apply a “last-served defendant” rule. Those jurisdictions give each defendant 30 days in which to file a notice of removal.
By all appearances, the Fourth Circuit had found a middle ground. Footnote 3 in the McKinney opinion states that, if the first-served defendant does not petition for removal within 30 days of service, the case may not be removed. But if the first-served defendant does petition for removal within 30 days, a later-served defendant may join in the petition or move for remand.
Seems pretty clear-cut, right? Here, the first defendant did not petition for removal within 30 days of service, so removal was not permitted.
No so fast.
Writing for the court, Judge (and former SCV Justice) Agee determines that the McKinney footnote is non-binding dicta–actually, in a flourish that ought to win him a sponsorship from Shephard’s, he calls it “dicta citing dicta that is no longer good law.” In fairness, other judges, including one who sat on the McKinney panel, had arrived at the same result. Further, a subsequent SCOTUS opinion, while not dispositive, undermines the validity of the McKinney footnote.
In that absence of statutory guidance or controlling caselaw, Judge Agee looks to basic fairness: a defendant is not involved in a lawsuit until she is served. It is fundamentally unfair to allow her procedural right to removal to be defeated by an earlier-served defendant’s failure to act before she was even part of the case.
We therefore join the Sixth, Eighth and Eleventh Circuits in adopting the last-served defendant rule and hold that in cases involving multiple defendants, each defendant, once served with formal process, has thirty days to file a notice of removal pursuant to 28 U.S.C. § 1446(b) in which earlier-served defendants may join regardless of whether they have previously filed a notice of removal.
Barbour is well-reasoned, and it gets to the right result.
The fun in the case comes courtesy of Judge Hamilton, who sat on the panel that decided McKinney. He fires off a nasty dissent. Judge Hamilton points out (correctly) that a subsequent panel is not empowered to overrule an earlier panel’s decision; only the Supreme Court or the Court of Appeals sitting en banc can do that. His dissent even takes a shot at the majority for eroding respect, collegiality, and uniformity in the Circuit by showing insufficient deference to the McKinney panel’s decision. The majority fully engages the dissent’s points and ultimately gets the better of the argument.
That’s only half the decision. After resolving the removal issue, the court dives into preemption and determines that the district court lacked subject matter jurisdiction. But that’s an issue for another post.
Takeaways from Barbour:
- The Fourth Circuit follows the last-served defendant rule.
- Barbour has a strong discussion of the binding effects of earlier panel decisions.
- Only SCOTUS or the full Fourth Circuit sitting en banc can overrule an earlier panel’s decision.
- It is truly a glorious time to be a defendant in Virginia’s federal courts. Between Barbour, Twiqbal and sons, and The Real Truth About Obama, the folks on the wrong side of the “v” are on a real tear in the Fourth Circuit. I’m definitely going to make sure that more of my clients get sued.