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?