As promised, here is a write up on the Fourth Circuit’s recent opinion in Barbour v. International Union. I can’t take credit for this one. It’s a guest post submitted a reader, who would prefer to remain anonymous. Can’t say I blame him/her–heck, I wouldn’t want to be associated with this blog, either:
For Civ Pro enthusiasts, last month saw the Fourth Circuit issue a rare en banc opinion controlling how cases are removed from state to federal court when multiple defendants are served at different times. The decision reversed a prior panel’s decision last year that rejected the McKinney Intermediate Rule in favor of the last-served defendant rule, discussed below.
You might think such a procedure would be controlled by statute. After all, 28 U.S.C. 1441(a) provides that “the defendant or the defendants” can remove a case.
But Congress, in its infinite wisdom, wrote 28 U.S.C. 1446(b), which sets forth the procedure for doing so, to address removal only when there is one defendant, not more. That section reads:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
You can see the problem here. With one defendant, it’s straightforward. But what if there are two, three or more defendants?
P serves D1 on Day 1. P serves D2 on day 15.
In this scenario, there are several options. D1 could file a notice of removal on Days 2-14. D2 then gets served and says “hey, that removal looks like a good idea, I’ll join your removal notice and take this case to district court, where summary judgment is a sure thing and we’ll send Plaintiff packing.”
Or, more likely, diligent lawyer doesn’t immediately file a notice of removal because, for all he knows, D2 is not diverse and there’s no diversity jurisdiction. Then diligent lawyer for D1 sees that D2 has been served and calls up D2 on day 16 and says hey, let’s file a joint notice of removal, but we have to do it fast, because my 30 days is up on day 31.
Not really any earth-shattering problem. But let’s change the numbers.
Super duper smart attorney for P says “I think I’ll make this challenging for those poor hourly-paid defense attorneys.” P serves D1 on day 1. P serves D2 on day 32. Now what? More questions.
(1) If D1 filed a notice of removal by day 31, does D2 get until day 62 to file his own notice or join in D1’s notice or must D2 have filed joined D1’s notice within 30 days of service on D1 (in other words, before D2 was even served!)?
(2) If D1 did not file a notice of removal by day 31, can he still join in D2’s notice of removal if filed by day 62?
Answer: It depends where you live–or, more specifically, in which federal circuit you live.
The first (not First) circuit court to address Congress’s oversight was the Fifth Circuit in 1986.
[Editor’s Note: 1986. Do you have any idea how long ago that was?! In 1986, Boy George guest-starred in an episode of The A-Team. Argentina beat Germany to win the World Cup–sorry, make that West Germany. The Mets were good. We were reliably informed that Brendan Sullivan is not a potted plant. Linday Lohan and all three Olsen twins were born in 1986.]
The Fifth Circuit said “well, the statute says within 30 days of service upon ‘the defendant,’ it must mean “the first defendant.” If D1 did not file a notice of removal, both D1 and D2 are out of luck. The unfairness of this rule is obvious — D2 was not even in the case when his right of removal was extinguished by someone he maybe never met and probably didn’t like, D1.
In 1988, the Fighting Fifth Circuit resolved the question it left open the first time around — “What if D1 did file a notice of removal within 30 days? Can’t D2 join the notice of removal within 30 days of D2 being served?” Nope. According to this “First-Served Defendant Rule”, a notice of removal must be filed within 30 days of service on the first-served defendant and all defendants must join D1’s notice of removal within 30 days of D1 being served.
Four years after the Fifth Circuit bench-slapped later-served defendants, the Fourth Circuit addressed the issue in a footnote, establishing what would be known forever thereafter as the McKinney Intermediate Rule. The Court said “we agree with you brethren of the Fifth, D1 does have to file a notice of removal within 30 days or he’s mucked it up for D2. But the statute does not say ‘first’ defendant and we
can’t don’t like to add words to a statute. Besides, it’s really, really unfair to extinguish the rights of every defendant served after the first one if that one fails to file a notice of removal. We have a better idea: 1446(b) does say ‘the defendant’ but Congress surely meant ‘each defendant’ should have 30 days to file a notice of removal.”
Accordingly, the McKinney Intermediate Rule still requires D1 to file a notice within 30 days of being served, as required by the Fifth Circuit, but each subsequently-served defendant such as D2 gets 30 days to file his own notice or join in D1’s notice.
[Editor’s Note: And now you see why I do appeals.]
After the Fourth Circuit introduced the McKinney Intermediate Rule, this issue arose in three other circuits, the Sixth, Eighth and Eleventh. Well, this should be easy, those judges no doubt thought, we have two different solutions to this problem; we don’t have to do anything but crib from the Fourth or Fifth.
Those circuits evidently said, to themselves (or amongst their clerks), “Wow, those uptight southern and eastern judges are too harsh, D2 ought not be hostage by D1’s ignorant decision. I think we can improve on this, Let’s make our own defendant-friendly rule. We’ll call it the ‘Last-Served Defendant Rule’ and if D2 or any subsequently-served defendant files a notice of removal, earlier-served defendants can still join it.”
[Update: A reader tells me that the Ninth Circuit adopted the Last-Served Defendant Rule in January.]
And then it got worse.
In the years since a panel of the Fourth Circuit introduced the McKinney Intermediate Rule some of the district courts in the circuit started ignoring it. Sacrebleu! How could this be? Who do these district judges think they are disobeying dictates from the ivory tower of an appellate court?
Heard by flies on the wall of district judges’ chambers: “Well, geez, if it was so danged important, why’d they put it in a footnote! Heck, it wasn’t even the facts of that particular case! If they’d had the benefit of the thinking by those smart judges in the 6th, 8th, and 11th circuits, surely they would have taken pity on those poor defendants and given them 30 days to convince their no-good predecessors to join their notice of removal. If they meant it, by golly, I want the Court of Appeals to tell me so in no uncertain terms!” Wish granted.
In Barbour v. International Union, an opinion issued last year, a three-judge panel found the McKinney Intermediate Rule did not apply because in the Court’s first reference to it in an opinion, it was dicta. Moreover, according to the panel, it was fundamentally unfair to allow a defendant’s procedural right to removal to be defeated by an earlier-served defendant’s failure to act before she was even part of the case.
As one sage commentator acknowledged at the time, the panel opinion was “well-reasoned, and it gets to the right result.” Accordingly, the panel adopted the Last-Served Defendant Rule.
In Barbour, a majority of the en banc Fourth Circuit, by a vote of 7-5, said “Yup, we meant what we said many years ago, even if it was in a footnote” because “the McKinney Intermediate Rule is the most logical and faithful interpretation of the operation of § 1446(b).” And the author of the en banc opinion, Senior Judge Hamilton, is in a position to know what the McKinney panel meant because he was on the panel when McKinney was decided. Also noteworthy — Judge Shedd, a member of the Barbour majority, was also on the panel when McKinney was decided, though he was a district judge sitting by designation at that time.
According to Judge Hamilton, “In contrast to the Last-Served Defendant Rule, the McKinney Intermediate Rule seeks to apply § 1446(b)’s requirement to act within thirty days of service to all defendants, including the first- and last-served.”
The McKinney Intermediate Rule obviously avoids the fatal flaw in the Last-Served Defendant Rule: The Last-Served Defendant Rule only applies § 1446(b) to one defendant—the last-served. Innumerable defendants can intentionally ignore § 1446(b) if the last-served defendant can convince the earlier-served defendants that their intentional decision was in error.
It strains credulity to conclude that Congress intended to allow defendants to flagrantly ignore § 1446(b). In contrast to the Last-Served Defendant Rule, the McKinney Intermediate Rule seeks to apply § 1446(b)’s requirement to act within thirty days of service to all defendants, including the first- and last-served. As noted above, the first-served defendant must file a notice of removal within thirty days of service; later-served defendants have to join the notice within thirty days of service upon them. Interpreting § 1446(b)’s within thirty days of service requirement as applying to all defendants instead of just one, in our opinion, carries out Congress’ intent in drafting the statute, and avoids reading the words “first-served” or “last-served” into § 1446(b).
In other words, every defendant has 30 days to act (i.e. seek removal) but blame the Rule of Unanimity, not the McKinney Intermediate Rule, when one defendant’s failure to act timely defeats a subsequently-served defendant’s right to remove.
As one might imagine, Judge Agee, author of the panel opinion, dissented from the en banc opinion because he “respectfully disagree(d) with the basis upon which the majority opinion rests that judgment . . . because the last-served defendant rule represents the more accurate and appropriate reading of the terms of 28 U.S.C. § 1446(b).” As Judge Agee points out, “Section 1446(b) requires ‘[t]he notice of removal of a civil action or proceeding . . . be filed within thirty days’ of ‘the defendant[’s]’ receipt of the ‘initial pleading,’ or ‘within thirty days after the service of summons.’ 28 U.S.C. § 1446(b) (emphasis added).” Accordingly, “‘the defendant’ must be read in its ordinary context to apply to each defendant. If Congress had intended ‘the defendant’ to exclude all defendants after the first-served defendant, it could easily and clearly have said so. Congress did not. Consequently, to give meaning to the language Congress used, ‘the defendant’ should be taken to mean what it would in the ordinary course.”
Judge Agee goes on to say that
Contrary to the majority’s apparent misapprehension, filing a notice of removal is not the same as joining in that removal. Removal is controlled by § 1446(b)’s thirty-day requirement, but joinder is not. “[T]he defendant” who fails to file “[t]he notice of removal” within thirty days of service has lost that which the statute gave him — the right to file the removal notice. That right is gone forever. No matter what that tardy defendant may wish to do, it cannot file “[t]he notice of removal.” However, the loss of that right, the only right extended by the plain terms of § 1446(b), has no effect on the defendant’s right to join a notice of removal timely filed by another defendant.
Thus, contrary to the majority’s conclusion, “[i]t is the McKinney rule, not the rule of unanimity, which mandates that all earlier-served defendants file a timely notice of removal. The rule of unanimity simply requires that all defendants join in the removal at some point.”
Barbour now officially creates three different interpretations of Section 1446(b) among the five circuits to have addressed the issue:
- First-Served Defendant Rule (5th Circuit)
- Last-Served Defendant Rule (6th, 8th, 11th Circuits)
- McKinney Intermediate Rule (4th Circuit)
It would appear that at some point either Congress will have to step in and amend Section 1446 to address removal when multiple defendants are present or the Supreme Court will need to grant cert (perhaps in Barbour?) to address the split.
In the meantime, for practitioners in the Fourth Circuit, here are the lessons from Barbour:
- The instant you catch wind that one of your clients may be named in a state-court suit with other defendants, regardless of whether your client has been served, it would be worth the time and effort to locate your co-defendants’ counsel, if possible, and discuss removal of the case in the event they are served first. Getting all defendants’ counsel on board early is the best, and perhaps only, way, to ensure the best chance of removal.
- If you are the first-served defendant, file your notice of removal (assuming you wish to remove and have a basis for doing so of course)!
Many thanks to our anonymous contributor.