NOTE: this is an unpublished magistrate ruling, so we can't cite to it- but I think its discussion of the tension is instructive.
United Traffic Consultants, Inc. v. Premium Logistics, Inc. Not Reported in F.Supp.2d, 2001 WL 34039477 D.Or.,2001.
*3 United's second argument is sounder mathematically, but not legally. United contends that because Premium's agent was served on or about June 15, the deadline for removing this action was July 15, three weeks before L'Oreal was ever served. Therefore, United contends, L'Oreal could not petition to remove the action. Alternatively, United argues, because Premium did not remove this action within the 30-day deadline, Premium was ineligible to join in L'Oreal's subsequent petition for removal. Since all defendants had to join in the removal petition, United argues, Premium's default precluded the later-served defendants from initiating a petition for removal.
Although United does not use the term, its argument rests upon the "first-served defendant rule." The removal statute is silent regarding the procedure for removing cases with multiple defendants. It is unclear whether the deadline for all defendants commences to run as soon as any defendant is served, or whether each defendant has its own thirty day period in which to petition for removal. The question is complicated by the requirement, in most instances, that all defendants must join in the removal petition in order for it to be valid.
Some courts have reasoned that a defendant who did not exercise its right to removal within thirty days of being served is not entitled to a second bite at the apple through joining in a removal petition filed by a later-served defendant. Since unanimity is required, the net effect is that the thirty-day period commences to run when the first defendant is served. The counter- argument is that a later-served defendant should not be deprived of its opportunity to remove the case (and to persuade all co-defendants to join the petition) simply because the plaintiff chose to serve that defendant last. Indeed, such a rule encourages plaintiffs to manipulate the order of service. There also are concerns regarding defendants served close to the thirty-day deadline (for the first-served defendant), who may have to decide whether to join in the removal petition before they have even had an opportunity to retain counsel.
Courts and commentators are divided over the "first-served defendant rule." Cf Getty Oil Corp. v. Insurance Co. of America, 841 F.2d 1254 (5th Cir1988) (endorsing first-served defendant rule); Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P., 254 F3d 753, 755-57 (8th Cir2001) (rejecting rule). The Ninth Circuit has never decided this question.
There is a split of authority within this District. In Thomas v.. Avco, Civ. No. 00-1150-JE (D Or), I recommended that the first-served rule be rejected. Findings and Recommendation dated Dec. 18, 2000, adopted by Judge Marsh on January 10, 2001. Judge Panner likewise has rejected the first-served defendant rule. Hayden v. Asbestos Corp., Civ. No. 97-121-PA (D Or April 17, 1997). However, Judges Redden and Hubel have followed the first-served defendant rule. Parsons v. Hyundai Motor Co., Civ. No. 97-476-RE (D Or June 4, 1997); Ford v. GST Telecomm., Inc., Civ. No. 00-160-HU (D Or April 7, 2000). [FN6]
FN6. Judges Redden and Hubel both left open the possibility that there might be an equitable exception to the first served defendant rule in a case where the order of service was purposely manipulated. Defendants have offered no evidence of manipulation in the present case.
*4 At one time, the first-served defendant rule was followed by a majority of courts, but the recent (ed note by steve: recent as of 2001) trend is in the other direction. See 16 Moore's Federal Practice § 107.30[3][a][i], at 107-163(3d ed 2000) (predicting rejection of the first-served defendant rule). In Thomas, supra, I declined to follow the first-served defendant rule, and United has not persuaded me to alter that position.
United argues that it does not rely upon the first-served defendant rule at all but rather the "McKinney rule." [FN7] The latter is merely a variation of the first-served defendant rule adopted in McKinney v. Board of Trustees of Maryland Community College, 955 F.2d 924, 926-28 (4th Cir1992). In McKinney, the plaintiff served three defendants on the same day, then waited 24 days to serve eight other defendants, i.e., six days before the 30-day deadline for the first three defendants expired. The defendants were able to secure consents from only ten of the eleven defendants before the deadline; the eleventh defendant was out of town and could not be reached in time.
FN7. Although United now professes that its motion is premised upon the McKinney rule, United did not even mention McKinney until its reply brief.
The McKinney court decided that the later-served defendants were entitled to a full 30 days to decide whether to join the removal petition. Therefore, the first-served defendants could file their removal petition, and obtain consent from the later-served defendants after the action had been removed. Id., 955 F.2d at 928. If consent was withheld, the action would be remanded. 28 USC § 1448.
This solves one problem -the defendant being served so late that he lacks time to give informed consent- but at the expense of creating other problems, such as judge shopping. The first defendant can remove the action, while the second defendant can withhold his decision until he knows which federal judge has been assigned to the case. After the assignment, the second defendant can decline to consent requiring the case to be returned to state court. The McKinney rule also does not address other abuses, e.g., serving a pro se or defaulting defendant first, then waiting 30 days to serve other defendants who have attorneys and are more likely to remove the action.
Each approach has its problems but, under the approach adopted by the Eighth Circuit in Marano, a plaintiff can protect his interests by arranging for prompt service upon all defendants, which in turn minimizes the time period during which removal is possible. L'Oreal timely filed its removal petition within 30 days of being served, and all other defendants joined in that petition. Therefore, the action was properly removed, and United's motion to remand should be denied.
