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.