Brierly v. Alusuisse Flexible Pkg, 184 F.3d 527, C.A.6 (Ky.)
Administrator of decedent employee's estate brought wrongful death action against employer and supervisor in state court. Action was removed to federal court, and initial motion to remand was granted. Action was again removed, and administrator moved to remand. The United States District Court for the Eastern District of Kentucky, Joseph M. Hood, J., 913 F.Supp. 517, denied renewed motion to remand, and, subsequently, granted summary judgment for defendants. Administrator appealed. Addressing issues of first impression, the Court of Appeals, Daughtrey, Circuit Judge, held that: (1) district court's first order of remand, after employer first removed action based on diversity, did not divest court of jurisdiction to consider subsequent petition for removal filed by supervisor, as a later-served defendant; (2) in cases with multiple defendants served at different times, later-served defendant has 30 days from date of service to remove a case to federal district court, with consent of remaining defendants; (3) one-year limitation on removal of diversity cases applied only to actions not removable based on initial pleadings, and did not bar removal of instant action, which was initially removable; and (4) Kentucky Workers' Compensation Act provided exclusive remedy for employee's death.
Affirmed.
We recognize, as the Fourth Circuit noted in In re Lowe, 102 F.3d 731, 734 (4th Cir.1996), that there are few exceptions to *532 the general rule that remand orders are not reviewable and that these exceptions have been narrowly crafted by Congress and the courts. In this case, however, the removal by Ellison was not the functional equivalent of a motion to review or reconsider, but an original petition by a party with standing to remove after an initial remand because of his delayed service, the delay having been caused by the district court's stay order. We conclude that it would be unfair to preclude Ellison, a later-served defendant who was not involved in the first removal attempt, from the opportunity to present evidence regarding his residence and effect removal—with the consent of the remaining defendant, of course.
Brierly's discussion of the statutory interpretation:
II. The 30-Day Time Limitation of 28 U.S.C. § 1446(b)
[2] Link to KeyCite Notes Having determined that the district court had jurisdiction to consider Ellison's petition for removal, the next question we must consider is whether, in cases with multiple defendants served at different times, the last-served defendant is allowed a full 30 days after being served to remove or, instead, only has 30 days from time the first defendant is served. The question is one of first impression in this circuit and one that has divided our sister courts. [FN2] Our analysis begins with the statutory language. Under 28 U.S.C. § 1446(b):
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….
The statutory language itself contemplates only one defendant and thus does not answer the question of how to calculate the timing for removal in the event that multiple defendants are served at different times, one or more of them outside the original 30-day period.
Faced with slightly different factual settings, the courts have reached varying results by emphasizing the policy underlying the statute. For example, in Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir.1986), the Fifth Circuit held that the failure of the first-served defendant to file a notice of removal within 30 days of service prevents all subsequently served defendants from later removing the action to district court unless there is evidence that the plaintiff intentionally delayed naming other defendant in a bad-faith attempt to prevent removal. See also Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254 (5th Cir.1988); 14C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3739 at 337 (3d ed.1998) (citing cases). The original defendants in Brown could have removed earlier in the litigation because all the requirements for the district court to exercise diversity jurisdiction had been met, but they had not done so. In holding that the subsequently added defendant could not remove to federal court, the Fifth Circuit concluded:
The general rule has been criticized as unfair…. [W]e do not perceive the suggested unfairness to the subsequently added defendant who is merely not granted an opportunity that might have been available to others. A defendant who is added to a case in which a co-defendant has failed to seek removal is in no worse position than it would have *533 been in if the co-defendant had opposed removal or were domiciled in the same state as the plaintiff. To permit the defendants in this case to obtain removal after they have tested state-court waters for four years would give them a second opportunity to forum-shop and further delay the progress of the suit. The unfairness of this to the plaintiff outweighs the unfairness, if any, to the last-joined defendant. The forum for a suit ought to be settled at some time early in the litigation. Brown, 792 F.2d at 482.
The Fourth Circuit, by contrast, has held that "individual defendants have thirty days from the time they are served with process or with a complaint to join in an otherwise valid removal petition." McKinney v. Board of Trustees of Mayland Community College, 955 F.2d 924, 928 (4th Cir.1992). In McKinney, the earlier-served defendants had petitioned for removal within their allotted 30 days, and the question was whether a later-served defendant could join in their removal petition after that 30-day period had elapsed. The Fourth Circuit articulated several policy considerations supporting its conclusion. First, the court stated, it did not believe Congress intended the inequity that would result from "establishing one fixed deadline for defendants served as much as thirty days apart." Id. at 927. The court additionally noted a policy concern that was not present when Demco was decided by the Fifth Circuit, pointing out that in 1988, Congress amended § 1446(a) to provide that petitions for removal are now subject to Rule 11 of the Federal Rules of Civil Procedure. See Judicial Improvements and Access to Justice Act, Pub.L.No. 100-702, § 1016(b), 102 Stat. 4669 (1988). In light of that amendment, the court reasoned, a rule that the last-served defendant has 30 days in which to remove a case to federal court is imperative. "Otherwise, later served defendants will either have to forego removal or join hurriedly in a petition for removal and face possible Rule 11 sanctions." McKinney, 955 F.2d at 928. The court also responded to the argument that plaintiffs are entitled to know early in the proceedings whether the case will be heard in state or federal court, noting that plaintiffs can ensure a quick resolution of the forum by simply "mak[ing] sure that all defendants are served at about the same time." Id. at 927.
The facts in this case are somewhat different than the facts before the McKinney court in that the earlier-served defendants in McKinney had a valid petition for removal pending at the time the later-served defendant joined in the removal petition, whereas the earlier-served defendant in the case at bar had failed in its attempts to remove the case when the later-served defendant filed a new removal petition. Nonetheless, we find that the policy considerations articulated by the Fourth Circuit in McKinney are equally applicable to the facts before this court.
[3] Link to KeyCite Notes[4] Link to KeyCite Notes Furthermore, as a matter of statutory construction, holding that the time for removal commences for all purposes upon service of the first defendant would require us to insert "first" before "defendant" into the language of the statute. See id. We are naturally reluctant to read additional words into the statute, however. If Congress had intended the 30- day removal period to commence upon service of the first defendant, it could have easily so provided. For that reason, and as a matter of fairness to later-served defendants, we hold that a later-served defendant has 30 days from the date of service to remove a case to federal district court, with the consent of the remaining defendants. [FN3]
FN2. The two leading treatises also diverge in their recommendations of how to resolve this legal issue. Wright & Miller recommend permitting a later-served defendant 30 days to remove, whereas Moore's Federal Practice recommends that the 30-day time limit should begin to run from service on the first defendant. See 14C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3739 at 336-39 (3d ed.1998); Moore's Federal Practice § 107-30[3][a] (3d ed.1997).
FN3. Our holding on this issue raises the question of whether Alusuisse, who had previously failed in its attempts to remove the case to district court within the 30-day time limitation, could consent to Ellison's petition to remove the case. It appears that none of our sister circuits have addressed this issue. The rule of unanimity requires that in order for a notice of removal to be properly before the court, all defendants who have been served or otherwise properly joined in the action must either join in the removal, or file a written consent to the removal. We conclude that a first-served defendant can consent to a later-served defendant's removal petition, despite having already failed in its own efforts to remove. Given the rule of unanimity, holding otherwise would vitiate the removal application of the later-served defendants and thereby nullify our holding that later-served defendants are entitled to 30 days to remove the case to district court. See Freeman v. Bechtel, 936 F.Supp. 320, 325-27 (M.D.N.C.1996) (holding first-served defendants could consent to later-served defendant's removal despite having already waived their right to removal); but see Holder v. City of Atlanta, 925 F.Supp. 783, 785-86 (N.D.Ga.1996) (holding that later-served defendants cannot obtain consent from defendants who failed to remove within their own 30-day period); Scialo v. Scala Packing Co., Inc., 821 F.Supp. 1276, 1278 (N.D.Ill.1993) (refusing to allow later-served defendants whose petition to remove had failed because of noncompliance with § 1446(b) to consent to first-served defendant's petition for removal).
