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Removal to Federal Court: Death of the First-Served Defendant Doctrine

By John D. Sear
December 28, 2006

Under 28 U.S.C. '1446(b), defendants seeking to remove a case to federal court must file their notice of removal 'within thirty days of receipt, through service or otherwise, of the complaint.' Federal circuits historically have split over when the removal period begins and expires. See generally Brian Sheppard, Annotation, When Does Period for Filing Petition for Removal of Civil Action From State Court to Federal District Court Begin to Run Under 28 U.S.C.A. '1446(b), 139 A.L.R. Fed. 331, at ”28-29 (1997). Some circuits have held that the removal period begins when the first defendant is served and expires 30 days later, regardless of when other defendants are served. Those circuits subscribing to the 'first-served defendant' doctrine hold that defendants served more than 30 days after the first defendant is served are precluded from removing the case if the earlier-served defendant failed to remove within 30 days after service. E.g., Getty Oil v. Insurance Co. of North America, 841 F.2d 1254, 1262-63 (5th Cir. 1988) (holding that the 30-day period for removal commences when the first defendant is served). Rejecting the first-served defendant doctrine, other circuits have held that the removal period begins anew each time a new defendant is served. E.g., Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999) (holding that later-served defendants have 30 days to remove even if first-served defendant's 30-day period has already expired). Those circuits reason that it is fundamentally unfair to foreclose removal by later-served defendants, particularly those defendants served after the expiration of the first 30-day period.

One of the U.S. Supreme Court's most recent pronouncements on removal likely sounds the death knell of the first-served defendant rule. Courts that once adhered to the first-served defendant rule have begun to abandon that doctrine in favor of a rule that permits later-served defendants to remove to federal court, even when they are served more than 30 days after service of the first defendant. Thanks to the Supreme Court, lower courts now realize that they may not jeopardize a defendant's rights ' implicitly or explicitly ' before that defendant is properly served with process and given an opportunity to be heard. Courts have abandoned the first-served defendant doctrine out of a recognition that it does not comport with basic notions of due process and fundamental fairness. The abandonment of the first-served defendant doctrine is long overdue.

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