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Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. 526 U.S. 344, 119 S.Ct. 1322 U.S.Ala.,1999.
In state court breach of contract and fraud action, defendant filed notice of removal, and plaintiff filed motion to remand. The United States District Court for the Northern District of Alabama, J. Foy Guin, Jr., J., denied motion, but certified order for interlocutory appeal. The United States Court of Appeals for the Eleventh Circuit reversed and remanded, 125 F.3d 1396. Certiorari was granted. The Supreme Court, Justice Ginsburg, abrogating Reece, 98 F.3d 839, and Roe, 38 F.3d 298, held that 30-day removal period began to run not when defendant received faxed, file-stamped copy of complaint, but rather, when defendant was later formally served by certified mail.
Court of Appeals' judgment reversed and remanded.
Chief Justice Rehnquist issued dissenting opinion in which Justices Scalia and Thomas joined.
oh crap. This 2006 dc district case talks about THREE rules: first-served, last-served, and "intermediate." And of course it applies the 3rd rule, based on McKinney. The intermediate "McKinney" rule supposedly is: if the original complaint is removable, and the 1st-served defendant removes within 30 days, later defendants can properly join that removal. However, if 1st defendant can remove, but does not within initial 30 days allowed by 28 USC 1447(b), later defendants are unable to remove because first defendant is barred from joining by its own waiver, and due to unanimity rule in Chicago, Rock Island et al v. Martin if removal is not properly joined by all defendants case must be remanded. Prevents 1st defendant from having another bite at the apple.
Princeton Running Co, Inc v. Andre Williams
another intermediate-rule case, cited in princeton: Phillips v. Corrections Corp. of America 407 F.Supp.2d 18 D.D.C.,2005.
Background: Inmate formerly housed at District of Columbia jail and currently housed at privately operated corrections facility brought actions in District of Columbia court against District and private operator, alleging Eighth Amendment violations. Actions were consolidated. Subsequently, inmate filed amended complaint adding individual corrections officers. Defendants removed action on basis of federal question jurisdiction. Inmate moved to remand.
Holding: The District Court, Leon, J., held that original defendants' election not to file notice of removal within 30-day limitations periodprecluded individual defendants from removing.
Motion granted.
First-Served Rule
Getty Oil Corp., a Div. of Texaco, Inc. v. Insurance Co. of North Getty Oil Corp., a Div. of Texaco, Inc. v. Insurance Co. of North America 841 F.2d 1254 C.A.5 (Tex.),1988.
cited in McKinney
Corporation and its successor brought action against supplier and supplier's insurers to recover for losses arising from accident involving chemicals supplied by supplier. After removal from state court, the United States District Court for the Southern District of Texas, Hugh Gibson, J., dismissed action on the merits, and corporation appealed. The Court of Appeals, Garwood, Circuit Judge, held that: (1) district court's failure to determine prior to deciding case on merits whether there was complete diversity between parties required vacation of judgment and remand for consideration of jurisdictional issues, and (2) all served defendants were required to join in petition no later than 30 days from day on which first defendant was served.
Vacated and remanded.
Brown v. Demco, 792 F.2d 478, 482 (5th Cir. 1986).
5th circuit went with the first served rule, citing trend to limit removal generally, to construe removal rules narrowly
Phoenix v. Sokoloff, 235 F.3d 352, (7th circuit, 2000).
7th circuit appears to go with first served rule.
Bush v. Cheap Tickets (9th Circuit, 2005). do we have a cite on this?
Case used by 1st served rule proponents relying on 1 year limit clause of 1446b to prove that forum selection should be settled as soon as possible, hence the 1st served rule should apply. They argue last served rule would allow more than 1 year to remove. But this 1 year clause is only applicable to actions not originally removable that need to be amended, etc.
Second-Served Rule
Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999)
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.
McKinney v. Board of Trustees of Mayland Community College 955 F.2d 924 C.A.4 (N.C.),1992.
cited in Brierly
Former community college employees filed action in state court claiming that they had been unlawfully discharged on the basis of their political affiliations or for having written a letter critical of how the college selected its president. College and trustees removed the action to federal court. The United States District Court for the Western District of North Carolina, Richard L. Voorhees, Chief Judge, 713 F.Supp. 185, denied a motion to remand and, subsequently, granted summary judgment for the trustees. Employees appealed. The Court of Appeals, Ervin, Chief Judge, held that: (1) the 30-day time period for removing the action to federal court began to run with respect to each individual trustee when that trustee was served, not when the first trustee was served, and (2) genuine issues of material fact existed, precluding summary judgment against the employees, on whether the discharges were politically motivated or retaliatory.
Affirmed in part, reversed in part, and remanded.
Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P. 254 F.3d 753 C.A.8 (Mo.),2001.
discusses getty but rules the other way - applies 2nd-served rule
Franchisees brought state-court action against franchisors, asserting claims for fraud, constructive termination, and breach of contract. Franchisors removed action and moved to dismiss, and franchisees moved for remand. The United States District Court for the Western District of Missouri, Fernando J. Gaitan, J., denied remand motion and dismissed action. Franchisees appealed. The Court of Appeals, Bowman, Circuit Judge, held that: (1) each defendant has 30 days after receiving service within which to file a notice of removal, regardless of when, or if, previously served defendants had filed such notices; (2) general allegations of fraud were insufficient to raise issue that contracts' forum-selection clauses were unenforceable due to fraud; and (3) franchisees could not challenge, for the first time on appeal, enforceability of franchise and development agreements' forum-selection provisions on grounds that they violated Missouri public policy.
Affirmed.
United Traffic Consultants, Inc. v. Premium Logistics, Inc. Not Reported in F.Supp.2d, 2001 WL 34039477 **D.Or.,2001**.
probably not relevant, because it's not controlling- but OR district court has split rulings on the issue. I quote heavily from the decision on the linked page.
Other Cases / Rules
Caterpillar, Inc. v. Lewis, 519 U.S. 61, 77 (1996)
Parties were not completely diverse when Caterpillar removed to fed court. Lewis moved to remand, but then the defendant he shared citizenship was dismissed from the case, giving complete diversity. District court held jury trial with verdict for Caterpillar. 6th circuit vacated judgment on lack of SMJ because of failed diversity. SCOTUS reverses 6th circuit, affirms district court for Caterpillar. Held: A district court's error in failing to remand a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional requirements are met at the time judgment is entered.
Parrino v. FHP. Inc., 146 F.3d 699, 703 (9th Cir. 1998)
Parrino sued his HMO in state court, alleging that they improperly denied his initial claim for proton beam therapy as a treatment for a brain tumor which eventually killed him. HMO removed. Following removal, the United States District Court for the Central District of California, Terry J. Hatter, Jr., J., denied a motion to remand and then granted a motion to dismiss, and the insured's estate appealed. The Court of Appeals, Browning, Circuit Judge, held that: (1) the insured did not have to request an interlocutory appeal to preserve his objections to removal; (2) **the provider's failure to join the administrator's removal notice until nearly two months after service, though a procedural defect, did not warrant reversal and remand;** (3) removal jurisdiction existed under the Employee Retirement Income Security Act (ERISA); (4) ERISA preempted almost all of the claims; (5) the district court properly considered the Master Group Application in ruling on both motions; (6) the insured did not waive his dismissed claims by failing to reallege them in his amended complaint; and (7) the amended complaint failed to state spoliation claims.
Affirmed, SCOTUS denied cert.
Federal Deposit Ins. Corp. v. Santiago Plaza 598 F.2d 634 C.A.Puerto Rico, 1979.
cited in Brierly
"The merits of these appeals are simpler than the procedural tangles involved. The law in this circuit is clear that once a district court has decided to remand a case and has so notified the state court, the district judge is without power to take any further action. In re La Providencia Dev. Corp., supra, 406 F.2d at 251. This is true no matter how erroneous the district judge may later decide his remand decision was. "The district court has one shot, right or wrong." Id. at 253. This rule is not an aberration from the general rule. See id. at 253 n.2. Rather, it is based upon the statutory command that "(a)n order remanding a case to the State court from which it was removed is not reviewable on appeal Or otherwise." 28 U.S.C. s 1447(d) (emphasis added). This language has been universally construed to prohibit even a motion for reconsideration once the state court has resumed jurisdiction. In the four months between remand and reconsideration, the state court's jurisdiction, however it may be measured, had resumed."
In re Lowe 102 F.3d 731 C.A.4,1996.
cited in Brierly
Petitioner sought writ of mandamus to require district court to remand action to state court. The Court of Appeals, Diana Gribbon Motz, Circuit Judge, held that: (1) petition for writ of mandamus was appropriate method for party to pursue allegations that district court had no jurisdiction to reconsider its order remanding action to state court; (2) district court exceeded its jurisdiction when it reconsidered its order remanding action to state court; and (3) remand statute divests district court of jurisdiction over case as soon as remand order is entered.
Writ granted.
Chicago, Rock Island & Pacific RR v Martin, 178 U.S. 245 (1900)
Old case where USSC established the "Unanimity Rule". Held that under 1446b, all D's must file for removal.
Prize Frize v. Matrix, 167 F.3d 1261 (9th Cir. 1999).
9th Circuit follows Unanimity rule. See also the Parrino case (above) from a year earlier in 9th circuit.
Biggs Corp. v. Wilen
97 F.Supp.2d 1040
D.Nev.,2000.
this could be helpful. same type of situation as ours, but it doesnt go into a lot of detail about what they would consider an exceptional case
"the first-served defendant rule as espoused by the Fifth Circuit, is not as harsh as it may appear and allows for exceptions in situations where the plaintiff may abuse the rule by purposefully waiting to serve some defendants. The Fifth Circuit recognized the potential for abuse in a case where the removing party was not added to the lawsuit until late in the proceeding. The Court stated that "[e]xceptional circumstances might permit removal even when a later-joined defendant petitions more than precisely thirty days after the first defendant is served." Brown v. Demco, Inc., 792 F.2d at 482. The exceptional circumstances exception ensures that later-served defendants are protected from plaintiff's acting in a bad faith effort to prevent removal."
Brown v. Demco, Inc.
792 F.2d 478
C.A.5 (La.),1986.
Jun 18, 1986 (Approx. 5 pages)
this basically just says that if their are exceptional circumstances then exceptions will be made, but there arent any in this case, and it doesnt lay out what an exceptional circumstance is.
"Exceptional circumstances might permit removal even when a later-joined defendant petitions more than precisely thirty days after the first defendant is served. No such circumstance is present here. The evidence does not establish that Brown was aware that FMC/WECO was a proper defendant within the thirty day time limit but delayed naming it as a defendant in a bad faith effort to prevent removal."
Faulk v. Superior Industries Intern., Inc.
851 F.Supp. 457
M.D.Fla.,1994.
this says that a party failing to obtain counsel before the 30 day deadline is not an exceptional circumstance
Brown v. Demco, Inc. 792 F.2d 478 C.A.5 (La.),1986.
Faulk v. Superior Industries Intern., Inc. 851 F.Supp. 457 M.D.Fla.,1994
Biggs Corp. v. Wilen 97 F.Supp.2d 1040 D.Nev.,2000
Murphy v. USSC
United Computer Systems
Smith v. Mailboxes - DC ca
Griffith DC wa
Exceptional circumstances cases:
Gillis - 5th circuit
Brown v. Demco - 5th circuit
Vogel - lost files? W.D. MI
Baych - bad faith, lost files? "the removal trap"
Hernandez - 1 day late, good faith effort but miscalculated the date
