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.
Sandon, I think they came to the future and read your email.
"The district court, in analyzing the statutory language, stated:
If anything, the use of the word "defendant", singular, seems to refer to notice to the individual defendant, not defendants collectively, nor to whichever one happens to be served first. And Congress was quite capable of using the plural when that is what it meant, as it did in 1441(a)'s reference to "the defendant or defendants". It is as if 1446(b) read, by ellipsis, "… receipt by the defendant in question …". It would be awkward, and stretching things, to read in "… receipt by the defendant first served." McKinney, 713 F.Supp. at 188-89.
While we agree with the district court that reading in "the defendant first served" is inappropriate, we are not entirely persuaded by the "Congress was quite capable of using the plural" argument. We also do not agree with the plaintiffs' contention that the later served defendant should be required to join in the petition for removal within the first served defendant's filing period because removal statutes in general are strictly construed. We believe instead that the statutory language by itself does not answer our question, because section 1446(b) only contemplates one defendant. Therefore, we must resort to other authority to answer our question."
(p926)
points to Getty Oil Corp. v. Insurance Co. of North America 841 F.2d 1254 C.A.5 (Tex.),1988.
Whether the thirty-day limit on removal to federal court begins to run with the first service when there are defendants served on different days is a question of first impression in the Fourth Circuit. In the district court's words, "The issue is whether B has thirty days from the time he himself is served to join the removal petition, or must join within thirty days of A's service." Id. at 188. Here, "B" is defendant Smith and "A" is the group of three defendants who were served on April 25. [FN3]
FN3. In a different situation, where B is served more than 30 days after A is served, two timing issues can arise, and the law is settled as to each. First, if A petitions for removal within 30 days, the case may be removed, and B can either join in the petition or move for remand. See 28 U.S.C. § 1448. Second, if A does not petition for removal within 30 days, the case may not be removed. See, e.g., Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F.Supp. 351, 354 (E.D.Mo.1981).
Here's the McKinney discussion of the statutory interpretation issue
We begin our analysis with the statutory language. Under 28 U.S.C. § 1446(b):
The petition for 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 … or within thirty days after the service of summons upon the defendant….
Section 1446(b) does not address multiple defendants. The district court, in analyzing the statutory language, stated:
If anything, the use of the word "defendant", singular, seems to refer to notice to the individual defendant, not defendants collectively, nor to whichever one happens to be served first. And Congress was quite capable of using the plural when that is what it meant, as it did in 1441(a)'s reference to "the defendant or defendants". It is as if 1446(b) read, by ellipsis, "… receipt by the defendant in question …". It would be awkward, and stretching things, to read in "… receipt by the defendant first served."
McKinney, 713 F.Supp. at 188-89. While we agree with the district court that reading in "the defendant first served" is inappropriate, we are not entirely persuaded by the "Congress was quite capable of using the plural" argument. We also do not agree with the plaintiffs' contention that the later served defendant should be required to join in the petition for removal within the first served defendant's filing period because removal statutes in general are strictly construed. We believe instead that the statutory language by itself does not answer our question, because section 1446(b) only contemplates one defendant. Therefore, we must resort to other authority to answer our question.
Unfortunately, the legislative history of section 1446(b) does not address the situation where multiple defendants are served on different days. We next examine caselaw from other jurisdictions. There are very few reported cases on point, and only one circuit court has addressed our issue. Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254 (5th Cir.1988). Getty Oil involved three defendants: Insurance Company of North America (INA), Companies Collective, and NL Industries (NL). INA was served on September 3; Companies Collective was served on September 5; and NL was served on September 24. INA and Companies Collective petitioned for removal on September 26. NL joined in the petition on October 24, which was thirty days after it had received service but fifty-one days after INA was first served. The Getty Oil court held that "since the petition must be submitted within thirty days of service on the first defendant, all served defendants must join in the petition no later than thirty days from the day on which the first defendant was served." Id. at 1263.
We do not find the Getty Oil conclusion to be logical. While the first served defendant clearly must petition for removal within thirty days, section 1446(b) does not imply in any way that later served defendants have less than thirty days in which to act. Although the Getty Oil court stated that its rule "promotes unanimity among the *927 defendants," id., "unanimity" appears to be an inappropriate word choice. Rather, in establishing one fixed deadline for defendants served as much as thirty days apart, a better term for what the Getty Oil rule could lead to is "inequity." We do not think that Congress, in providing for removal to federal court, intended to allow inequitable results. Nor do we believe that it is appropriate for a court to add a word to a statute, as the Getty Oil opinion does by in effect inserting "first" before "defendant."
The plaintiffs cite three other reported decisions on point, all of which agree with the rule in Getty Oil: Varney v. Johns-Manville Corp., 653 F.Supp. 839 (N.D.Cal.1987); Godman v. Sears, Roebuck and Co., 588 F.Supp. 121 (E.D.Mich.1984); Schmidt v. National Organization for Women, 562 F.Supp. 210 (N.D.Fla.1983). In addition, a recent opinion from the District of Maryland cites the Getty Oil rule favorably in dicta. Johnson v. Baltimore City Police Dept., 757 F.Supp. 677, 679 (D.Md.1991). The facts in Johnson were different from those in Getty Oil and our case. In Johnson, there were five defendants. All were served between October 19 and October 23. The defendants all petitioned for removal on December 4, forty-six days after the first defendant was served. Therefore, unlike Getty Oil and our case, there was no otherwise valid petition for removal, and Johnson does not plainly contradict the district court's holding in our case.
Of course, Getty Oil and the few district court decisions on point are only persuasive authority to this court. Because we are unpersuaded, we look next to policy concerns. The main policy concern the plaintiffs cite is that a plaintiff is entitled
to know within a prescribed period of time whether the case will proceed in state or federal court. Procedural, calendaring, discovery, and other rules in various state courts differ from those in federal court and the plaintiffs who have legitimately made the decision to pursue their action in an appropriate state court are entitled to know at the earliest possible date if their choice of forum is going to be defeated by the defendants.
Plaintiffs' Brief at 12 (citation omitted). We see two problems with applying that reasoning to our issue. First, if plaintiffs want to know which court they will be in "at the earliest possible date," they need only to make sure that all defendants are served at about the same time. Here, eight defendants were served twenty-four days after the first three defendants were served. If they had been represented by different counsel, making communication more difficult, it is possible that more than one would not have joined in the petition for removal by May 25. [FN4] In addition, the twelfth defendant, Evelyn Dobbin, was served after the first defendants petitioned for removal. Presumably, the plaintiffs knew that the defendants served before May 25 might petition for removal and that Dobbin would then have the right to move to remand the case back to state court. See 28 U.S.C. § 1448. Thus, in this case, it does not appear that the plaintiffs wanted to know which court they would be in "at the earliest possible date."
FN4. As of May 19, the same attorney represented all of the defendants. It is not clear from the parties' briefs or the record if that attorney represented any of the defendants before May 19.
[2] Second, the plaintiffs' policy concern only looks at forum selection from a plaintiff's point of view, assuming that there is something inherently bad about removal and "defeating" the plaintiff's choice of forum. To the contrary, by providing for removal in the first place, Congress seems to believe that the defendant's right to remove a case that could be heard in federal court is at least as important as the plaintiff's right to the forum of his choice.
Rather than favoring plaintiffs or defendants, we agree with the district court that the removal procedure is intended to be "fair to both plaintiffs and defendants alike." McKinney, 713 F.Supp. at 189. The rule that the plaintiffs advance would *928 make it possible for a great injustice to take place. In the district court's words:
[U]nder the view urged by plaintiffs here, the rights of defendants generally could be rather easily overcome by tactical maneuvering by plaintiffs. Suppose, for example, plaintiff serves defendant A, thus starting the thirty-day period running, and then maneuvers to serve defendant B late on the thirtieth day. Obviously B is unlikely to rush to the courthouse door before it closes to file his joinder of A's removal petition; he is unlikely to even realize what is happening to him before it is too late. (There is nothing on the summons form such a defendant would receivewhich of course would be a summons to state, not federal, courtthat would tell him the rules for removal to federal court, or warn him that he might have much less than thirty days to join in a removal petition). This cannot be what Congress had in mind. Congress created the removal process to protect defendants. It did not extend such protection with one hand, and with the other give plaintiffs a bag of tricks to overcome it.
Id. Although we certainly do not suggest that the plaintiffs here were consciously attempting to prevent removal, the rule they urge would allow such tactics.
Finally, we consider another policy concern, which was not present when Getty Oil and the other decisions on point were decided. In 1988, Congress amended section 1446(a) to make petitions for removal subject to Rule 11 of the Federal Rules of Civil Procedure. Judicial Improvements and Access to Justice Act, Pub.L. No. 100-702, § 1016(b), 102 Stat. 4669 (1988). As amended, section 1446(a) is further reason to allow all defendants a full thirty days to investigate the appropriateness of removal. Otherwise, later served defendants will either have to forego removal or join hurriedly in a petition for removal and face possible Rule 11 sanctions. Congress surely did not intend to impose such a Hobson's choice on later served defendants.
For the reasons stated above, we hold that under 28 U.S.C. § 1446(b), 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. Accordingly, we affirm the judgment of the district court on the removal issue.
