Barbour v. Int’l Union, United Auto., Aerospace and Agric. Implement Workers of Am.,
2011 U.S. App. LEXIS 1695 (4th Cir. Jan. 27, 2011)
In this multi-defendant case, the defendants filed a joint notice of removal more than 30 days after one of the defendants was served with a copy of the complaint, but less than 30 days after another defendant was served, and before a third defendant had been served at all.
Plaintiffs moved to remand the action to state court, arguing that the removal was untimely. The district court ruled that the notice of removal was timely filed, noting that the “case . . . [provides] an excellent opportunity for the Fourth Circuit to clarify” its position first articulated in McKinney v. Board of Trustees of Maryland Community College, 955 F.2d 924 (4th Cir. 1992).
In McKinney, the Fourth Circuit adopted the rule requiring a notice of removal to be filed within 30 days of service on the first-served defendant, but allowing later-served defendants 30 days from the date they are served to join the notice of removal. This is commonly referred to as the “intermediate rule” because it lies between the Fifth Circuit’s “first-served defendant” rule and the “last-served defendant” rule followed by the Sixth, Eighth, Ninth, and Eleventh Circuits.
Under the “first-served defendant” rule, the notice of removal must be filed within 30 days of service on the first-served defendant, and all other defendants – even those not yet served – must join within that initial 30 day period. In contrast, the “last-served defendant” rule permits each defendant 30 days from service to file a notice of removal, so long as all other defendants join.
On appeal in Barbour, a divided panel adopted the “last-served defendant” rule and affirmed the district court’s ruling that the joint notice of removal had been timely filed. The appeal was then reheard en banc, where the majority reaffirmed the “intermediate rule” of McKinney and concluded that the removal was not timely filed.
The Fourth Circuit found that the “intermediate rule” was most consistent with the language of 28 U.S.C. § 1446(b), because it applies the statute’s “requirement to act within thirty days of service to all defendants, including the first- and last-served.”
Thus, in the Fourth Circuit, “the first-served defendant must file a notice of removal within thirty days of service; later-served defendants have to join the notice within thirty days of service upon them.”
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