Phillips v. Corrections Corp. of America
407 F.Supp.2d 18
D.D.C.,2005.
As a general rule, in cases with multiple defendants, removal is only appropriate when each defendant unambiguously and independently consents to removal. Kopff v. World Research Group, LLC, et al., 298 F.Supp.2d 50, 54 (D.D.C.2003) ("[I]t is well established that removal generally requires unanimity among the defendants."). Therefore, unless each defendant consents to removal in accordance with § 1446(b)'s thirty day time period, the removal is untimely. Williams v. Howard Univ., et al., 984 F.Supp. 27, 29 (D.D.C.1997). However, determining whether each defendant's consent is timely can be problematic when, as here, some defendants are added to an ongoing action and the time for removal has expired with respect to the first-served defendants.
Jurisdictions have adopted three different, and widely divergent, approaches to calculating when the thirty day time period in this type of situation begins to run under § 1446(b). A majority of courts apply the "first-served rule." E.g., Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254 (5th Cir.1988) (holding that later-served defendants cannot remove the action if the first-served defendants do not effect a timely removal). This rule has been criticized, however, on grounds that it enables plaintiffs to use dilatory tactics to overcome the legitimate removal rights of later-served defendants. See McKinney v. Board of Trustees of Mayland Community College, 955 F.2d 924, 928 (4th Cir.1992); see also Russell v. LJA Trucking Inc., 2001 WL 527411, at * 1-2 (E.D.N.Y. May 11, 2001) (rejecting "first-served rule"). At the other end of the spectrum is the "last-served rule," which is applied by a minority of courts. E.g., *21 Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir.1999) (holding that later-served defendants have thirty days from the date of service on them to file a notice of removal even though the first-served defendants failed to effect a timely removal). The final approach is an "intermediate rule" or sometimes referred to as the "McKinney Rule" derived from the Fourth Circuit's decision in McKinney v. Board of Trustees of Mayland Community College, 955 F.2d 924, 928 (4th Cir.1992) (holding that the first-served defendant must petition for removal within thirty days of service or its inaction will prevent later-served defendants from removing the case).
Our Circuit not having addressed this issue, the Court concludes that the intermediate rule is the best reasoned interpretation and application of § 1446(b), particularly in the circumstances of this case. Applying this rule to the instant set of facts reveals that the defendants' notice of removal is untimely. The first-served defendants failed to file a notice of removal with respect to the first law suits filed against them individually. In both of those actions, plaintiff, then pro se, raised claims under the Eighth Amendment to the Constitution, which would have been sufficient for the defendants to invoke this Court's jurisdiction under the federal question statute, 28 U.S.C. § 1331. Because they elected not to file a notice of removal, but, instead, to litigate the plaintiff's claims in Superior Court, the later-served defendants are now prevented from removing the consolidated action to federal court. See McKinney, 955 F.2d at 928 ("[I]ndividual defendants have thirty days from the time they are served with process or with a complaint to join in an otherwise valid removal petition.") (emphasis added). Accordingly, the defendants' notice of removal is untimely and therefore the plaintiff's motion to remand is GRANTED.
