I just cut/pasted this out of google. I can't find it on Westlaw… note it's not an circuit appeals decision, it's from the DC district court. But still interesting because of the discussion , and because it cites Getty, Brierly, and McKinney as appropriate authority.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PRINCETON RUNNING CO., INC. v. ANDRE WILLIAMS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion to remand [4] by plaintiff Princeton
Running Co., Inc. The original complaint in this action was filed in the Superior Court of the
District of Columbia and was served on defendant Andre Williams on April 15, 2003. An
amended complaint was filed on June 21, 2005, adding Mr. Williams’ business, Gotta Run, LLC,
as a defendant. On July 25, 2005, newly-joined defendant Gotta Run, Inc. (“Gotta Run”) filed a
notice of removal to federal court.
I. BACKGROUND
Plaintiff Princeton Running Co., a Pennsylvania corporation, filed this action for
misuse of trade secrets and breach of fiduciary duty against defendant Andre Williams, a former
employee, on April 15, 2003. See Mot. Remand at 1. Because Williams is a citizen of the
Commonwealth of Virginia, and the complaint sought almost $300,000 in damages, the case
could have been removed to federal court when it was first filed. See Am. Compl. at 2, 6; see
also 28 U.S.C. §§ 1332(a); 1446(a), (b). Mr. Williams, however, did not file a notice of removal
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within the 30-day time limit set forth in 28 U.S.C. § 1446(b).
The case progressed through discovery in Superior Court, and was scheduled for
trial on October 11, 2005. See Notice of Removal, Exh. A at 37-40 (Judge Weisberg’s Pretrial
Order of May 9, 2005). On the basis of information that came to light late in the discovery
process (and which plaintiff asserts that Williams had intentionally concealed), plaintiff filed a
motion to amend its complaint to join Gotta Run, Inc. as a defendant. See Mot. Remand at 3.
The Superior Court granted the motion, and the amended complaint was filed on June 21, 2005.
On July 25, Gotta Run (joined by Williams) filed a notice of removal to this Court pursuant to 28
U.S.C. § 1441(a). Shortly thereafter, Gotta Run filed in this Court a motion to dismiss the claims
against it under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff then moved to
remand the case to Superior Court.
II. DISCUSSION
Plaintiff argues in his motion to remand that removal to this Court was improper
on two grounds: (1) Williams’ failure, when the action first commenced, to file a notice of
removal within the 30-day deadline set by 28 U.S.C. § 1446(b) precluded removal after Gotta
Run was joined; and (2) the removal of this action is further barred by the one-year time limit for
the removal of diversity actions also set forth in Section 1446(b). See Mot. to Remand at 1. The
Court agrees that defendant Williams’ failure to remove this action, which was removable at the
time of the filing of the original complaint, within the 30-day time period set forth in 28 U.S.C.
§ 1446(b) precludes defendant Gotta Run from removing the case. As a result, the Court need
not decide whether the removal of the action is further barred by the one-year time limit in
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The term “State court” includes the Superior Court of the District of Columbia,
1
and the term “State” includes the District of Columbia. 28 U.S.C. § 1451.
3
Section 1446(b).
Under the federal removal statute “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.” 28 U.S.C. § 1441(a). This provision is not
1
limited to federal question jurisdiction but also extends to those actions in which original
jurisdiction exists on the basis of diversity of citizenship. See Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987). The diversity statute provides that “district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between … [c]itizens of different States.” 28
U.S.C. § 1332(a)(1). The burden falls on the removing defendants to demonstrate the federal
district court’s jurisdiction. See Kokkonen v. Guardian Life Insurance Company of America,
511 U.S. 375, 377 (1994).
Because federal courts are courts of limited jurisdiction, the removal statute is to
be strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 100-107 (1941);
Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996); Williams v. Howard University, 984
F. Supp. 27, 29 (D.D.C. 1997). Section 1446(b) of Title 28 sets out the procedures for removal,
and states, inter alia, that the notice of removal “shall be filed within thirty days after receipt by
the defendant, through service or otherwise, of a copy of the initial pleading setting forth the
claim for relief … .” 28 U.S.C. § 1446(b). It further provides that “[i]f the case stated by the
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Section 1446(b) reads, in its entirety:
2
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.
If the case stated by the initial pleading is not removable, a
notice of removal may be filed within thirty days after receipt by
the defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become
removable, except that a case may not be removed on the basis of
jurisdiction conferred by section 1332 of this title more than 1 year
after commencement of the action.
4
initial pleading is not removable, a notice of removal may be filed within thirty days after receipt
by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order
or other paper from which it may first be ascertained that the case is one which is or has become
removable … .” Id. (emphasis added). Therefore, if a case meets the requirements for removal
2
when it first is filed in state court, the defendant must file a notice of removal within 30 days of
being properly served with a summons and/or complaint. See 28 U.S.C. § 1446(b); see also
Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 356 (1999).
As a general rule, in cases with multiple defendants, removal is only appropriate
when each defendant unambiguously and independently consents to removal. See Kopff v.
World Research Group, 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
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5
consents to removal in accordance with Section 1446(b)'s 30-day time period, the removal is
untimely. See Williams v. Howard Univ., 984 F. Supp. at 29. Determining whether each
defendant's consent to removal is timely can be problematic when, as in this case, a defendant is
added to an ongoing action by amended complaint and the time for removal has expired with
respect to the first-served defendant. See Phillips v. Corrections Corp. of America, 407 F. Supp.
2d 18, 20 -21 (D.D.C. 2005).
Jurisdictions have adopted three different approaches to calculating when the
30-day time period in this type of situation begins to run under 28 U.S.C. § 1446(b). See Phillips
v. Corrections Corp. of America, 407 F. Supp. 2d at 20 -21 (discussing the various approaches).
A majority of courts apply the “first-served” rule. See, e.g., Getty Oil Corp. v. Ins. Co. of N.
Am., 841 F.2d 1254 (5th Cir.1988) (holding that later-served defendants cannot join in a removal
petition more than 30 days after service on the first-served defendant). This rule has been
criticized, however, on grounds that it enables plaintiffs purposely 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. See, e.g.,
Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir.1999) (holding that later-
served defendants have 30 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). This rule gives first-served
defendants who opted not to remove a second chance. The final approach is an “intermediate
rule” – and is sometimes referred to as the “McKinney Rule” – derived from the Fourth Circuit's
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6
decision in McKinney v. Board of Trustees of Mayland Community College, 955 F.2d at 928.
McKinney holds that the first-served defendant in an originally removable action must petition
for removal within 30 days of service or else later-served defendants are prevented from
removing the case; later-served defendants, however, have 30 days from their service date to join
in an otherwise valid removal petition. Id.
Our circuit not having addressed this issue, the Court concludes that the
McKinney intermediate rule is the best reasoned interpretation and application of Section
1446(b), as it is both fair to the later-served defendant and less prejudicial to plaintiffs – without
giving the earlier-served defendants an undeserved second bite at the apple. In so concluding, the
Court agrees with Judge Leon, who recently analyzed this issue. See Phillips v. Corrections
Corp. of America, 407 F. Supp. 2d at 20 -21. Applying this rule to the instant set of facts, the
Court concludes that the notice of removal filed by defendant Gotta Run is untimely. Defendant
Williams elected not to file a notice of removal within 30 days, but, instead, to litigate the
plaintiff's claims in Superior Court for two years, up to and including the completion of
discovery and the setting of a trial date. The later-joined defendant, Gotta Run, LLC, cannot now
remove the action, because under the McKinney rule, there is no otherwise valid petition for it to
join. Accordingly, it is hereby
ORDERED that this case be REMANDED to the Superior Court of the District of
Columbia; and it is
FURTHER ORDERED that the pending motion to dismiss [3] is denied without
prejudice to it being refiled in Superior Court; and it is
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FURTHER ORDERED that the Clerk of the Court shall remove this case from the
docket of this Court.
SO ORDERED.
PAUL L. FRIEDMAN
United States District Judge
DATE: September 5, 2006
