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.
- December 28, 2006John D. Sear
Recently filed cases in entertainment law, straight from the steps of the Los Angeles Superior Court.
December 28, 2006ALM Staff | Law Journal Newsletters |The U.S. District Court for the District of Nevada decided a genuine issue of fact existed as to whether a master-copyright report prepared by a consultant for an adult-film distributor was a trade secret. V.C.X. Ltd. v. Burge.
December 28, 2006Stan SoocherCelebrity Images/Trade-Dress Claims
Copyright Infringement/Joint-Authorship ClaimDecember 28, 2006ALM Staff | Law Journal Newsletters |The California Court of Appeal relied on a similarity test in prior California Supreme Court cases in recently finding that three video-game companies had a First Amendment right to create a character that shared some traits with Kieren Kirby, or 'Lady Miss Kier,' the former lead singer of the 1990s funk band Deee-Lite. Kirby v. Sega of America. But in a 2003 Missouri Supreme Court decision involving former St. Louis Blues hockey player Tony Twist, the judges found that Twist might have a case alleging that his name and likeness were exploited to sell the comic book 'Spawn.' Doe v. TCI Cablevision.
December 28, 2006Amanda BronstadThe Court of Appeal of California, Second District, Division 1, found an arbitration clause in a management agreement unenforceable under the California Talent Agencies Act. Ferrer v. Preston.
December 28, 2006ALM Staff | Law Journal Newsletters |Estate planning is central to the post-mortem distribution and protection of an individual's assets. Celebrities have special estate-planning concerns that include intellectual-property valuations, how the valuations affect estate taxes and post-mortem administration of intellectual-property. In the following interview, conducted in Nashville by Entertainment Law & Finance Editor-in-Chief Stan Soocher, entertainment attorney Robert L. Sullivan discusses these and related estate-planning issues that affect artists. Sullivan is a partner in the Nashville office of Loeb & Loeb where his clients include songwriters, music-publishing companies, record companies and recording artists. He has 30-years of experience as an entertainment lawyer and serves as a trustee for the estate of Johnny Cash.
December 28, 2006ALM Staff | Law Journal Newsletters |Highlights of the latest commercial leasing cases from around the country.
December 28, 2006ALM Staff | Law Journal Newsletters |Recent developments in e-commerce law and in the e-commerce industry.
December 28, 2006Michael Lear-OlimpiRecent cases in e-commerce law and in the e-commerce industry.
December 28, 2006Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger