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Shirley M. Barbour; Harry M. v. International Union

January 27, 2011

SHIRLEY M. BARBOUR; HARRY M. BARKER; ANTHONY BURTON; WILLIAM J. CLINE; BARBARA FAULKNER; RAYMOND N. FLECK, JR.; ARTHUR HAMILTON, II; DANIEL L. HAMM; TROY L. HARRIS; GARY LANDAU; VINCENT MARRA; PEGGY A. MURPHY; RICHARD DOUGLAS PERMENTER; PATRICIA PIERSON; JEFFREY N. ROBERTS; ANNIE SMITH RODGERS; REESS H. SCOTT; JOYCE SEE; RONEY SMITH; FRED M. STEWART; DANIEL LEE TICHNELL; ROBERT THOMAS; CHARLES F. WADKINS, PLAINTIFFS-APPELLANTS,
v.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA; LOCAL NO. 1183 OF INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS ÞOF AMERICA; LOCAL NO. 1212 OF INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, DEFENDANTS-APPELLEES.
AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, AMICUS SUPPORTING APPELLEES. Þ



Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:08-cv-01076-AMD)

The opinion of the court was delivered by: Hamilton, Senior Circuit Judge

ON REHEARING EN BANC

PUBLISHED

Argued: September 23, 2010

Before TRAXLER, Chief Judge, WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, KEENAN, and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge.*fn1

Vacated and remanded by published opinion. Senior Judge Hamilton wrote the opinion, in which Judges Motz, King, Gregory, Shedd, Keenan, and Wynn joined. Judge Agee wrote a separate opinion concurring in the judgment, in which Chief Judge Traxler and Judges Wilkinson, Niemeyer, and Duncan joined.

OPINION

Twenty-three former employees (the Retirees) of Chrysler Corporation (Chrysler) brought this action against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (the International), Local No. 1183 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Local 1183), and Local No. 1212 of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (Local 1212), in the Circuit Court for Cecil County, Maryland.*fn2 The UAW removed the action to the United States District Court for the District of Maryland, alleging that the claims asserted by the Retirees were completely preempted by federal labor law. After the UAW sought Rule 12(b)(6) dismissal on a variety of grounds, the Retirees moved to remand the case back to Maryland state court, alleging that the notice of removal was untimely filed, and, alternatively, that their claims were not completely preempted. The district court denied the motion to remand, holding that the notice of removal was timely filed. The district court also granted the motion to dismiss, holding that, although the Retirees' claims were completely preempted, the claims were barred by the six-month statute of limitation contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). The Retirees challenge these rulings on appeal. For the reasons stated below, we agree with the Retirees that the district court erred when it denied the motion to remand, because the UAW's notice of removal was untimely filed. Accordingly, we vacate the district court's judgment and remand the case to the district court with instructions to remand the case to Maryland state court. In light of our holding on the removal issue, we do not reach the Retirees' arguments concerning the district court's preemption and statute of limitation rulings.

I Prior to their January 31, 2007 retirement from Chrysler, the Retirees were employed by Chrysler at its automobile assembly plant (the Plant) in Newark, Delaware. Each of the Retirees were members of the International, and were members of either Local 1183 or Local 1212.

By the end of 2006, each of the Retirees had the requisite years of service with Chrysler to qualify for retirement with full benefits. However, each of the Retirees faced a difficult retirement decision. Through a variety of sources, including, but not limited to, statements from representatives and officers of the International, Local 1183, and Local 1212, the Retirees became aware that Chrysler was planning to reduce the size of its work force and that the Plant was "a prime candidate for a work force reduction." (J.A. 27). Based on their previous experience with work-force reductions, the Retirees believed that it was in their best interests to continue to work and forego retirement in order to determine whether the work-force reduction would include financial incentives to retirement-eligible employees.

Desiring to reap the benefit of any financial incentives to retirement-eligible employees, the Retirees sought the advice and counsel of the UAW to determine the "best course of action to preserve their eligibility to receive the financial benefits of a retirement package." (J.A. 28). According to the Retirees, the UAW advised them to delay their retirement until January 31, 2007, because, "by retiring in the calendar year 2007, any retirement package offered in 2007 would include the [Retirees] and any other UAW member who retired during the year 2007." (J.A. 28). Based on this advice, the Retirees submitted the required paperwork to effectuate a retirement date of January 31, 2007.

Between the time they submitted their retirement paperwork and January 31, 2007, many of the Retirees received information that the offer of a retirement package to retirement-eligible employees was "imminent." (J.A. 28). Consequently, some of the Retirees considered withdrawing their retirement paperwork and continuing to work until a firm announcement concerning financial incentives to retirement-eligible employees was made. In response, UAW representatives and officers informed the Retirees that it was unnecessary to withdraw their paperwork, because no retirement package was "'coming down'" and that any retirement package offered in 2007 would be retroactive to January 31, 2007 and include all who retired on or after that date in 2007. (J.A. 29). Relying on these representations, each of the Retirees retired on January 31, 2007.

Two weeks later, Chrysler announced that it would be offering retirement incentive packages, with the agreement and approval of the UAW, for eligible employees at the Plant. The retirement package offered had a value of approximately $70,000 for each retiring employee. However, the terms of the retirement package approved and agreed to by the UAW excluded the Retirees, because the retirement package applied prospectively, not retroactively.

On February 11, 2008, the Retirees filed a two-count complaint in the Circuit Court for Cecil County, Maryland. Count One asserted a claim under Maryland state law for negligent misrepresentation. The Retirees alleged that the UAW "owed [them] both legal and fiduciary duties . . . to disclose all material facts with regard to the status of the UAW's negotiations with Chrysler to the extent those negotiations impacted [the Retirees'] decision to retire." (J.A. 52-53). Count One also alleged that the UAW "had a duty to refrain from misrepresenting and omitting material facts regarding" such negotiations. (J.A. 53). The Retirees alleged that the UAW "made at least one or more of the following material misrepresentations of fact": (1) "No retirement package was 'coming down' or being currently negotiated by the UAW with Chrysler"; and (2) "Any retirement package negotiated between the UAW and Chrysler in 2007 would be retroactive and would apply to any employee who retired on or after January 31, 2007." (J.A. 53).

Count Two asserted a negligence claim under Maryland state law. This count alleged that the UAW breached "duties of care, fidelity and loyalty to ensure that all material facts regarding their relationship were fully disclosed and all actions taken on behalf of [the Retirees] were for their protection and in their best interests." (J.A. 55). The UAW allegedly breached such duties by failing to: (1) "advise [the Retirees] of the true nature and extent of their negotiations with Chrysler"; (2) keep the officers and representatives of Locals 1183 and Local 1212 apprised of the true nature and extent of the International's negotiations with Chrysler; and (3) "warn [the Retirees] that voluntary retirement of their employment before the official announcement of a retirement package would preclude them from being eligible for the receipt of future retirement packages offered during the 2007 calendar year." (J.A. 55-56).

The International was served with a copy of the complaint on March 20, 2008. Local 1183 was served with process on March 29, 2008. On April 28, 2009, more than thirty days after service on the International, but within thirty days of service on Local 1183, but before Local 1212 was served, all three defendants filed a joint notice of removal in the United States District Court for the District of Maryland.

According to the notice of removal, "[a]lthough [the Retirees] characterize their claims as state law claims, the duty of care that [the Retirees] maintain[] it is owed from [the UAW] . . . is the duty of fair representation, . . . which arises from UAW's status from its exclusive bargaining authority pursuant to section 9(a) of the National Labor Relations Act, 29 U.S.C. § 159." (J.A. 13). The notice further averred that, "[b]ecause the NLRA is an 'act regulating interstate commerce,' this Court has jurisdiction pursuant to 28 U.S.C. § 1337." (J.A. 13).

On May 5, 2008, the UAW filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In the motion, the UAW argued, among other things, that the Retirees' claims were barred by the six-month statute of limitation contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b).

On May 28, 2008, the Retirees filed a motion to remand the case to Maryland state court. According to the Retirees, the notice of removal was untimely, and, alternatively, there was no basis for federal jurisdiction. On June 12, 2008, the district court issued a memorandum and order denying the Retirees' motion to remand and granting the UAW's motion to dismiss. The district court did not specifically address the timeliness of the UAW's removal. Rather, the district court noted that the Retirees had "artfully" attempted to "'plead around' the preemptive force of federal labor law" and that their state law claims were "completely pre-empted by the federal duty of fair representation" in § 9(a) of the National Labor Relations Act, id. § 159(a). (J.A. 127). The district court found that "[t]he breach of that duty, if any, is a matter of federal, not state, law." (J.A. 127). Concurrent with its denial of the Retirees' motion to remand, the district court granted the UAW's motion to dismiss, concluding that the claims were barred by the six-month statute of limitation contained in § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b).

On June 13, 2008, the Retirees filed a motion for reconsideration. On the same day, the district court denied the motion. The district court held that the joint notice of removal was timely filed, noting that the "case . . . [provides] an excellent opportunity for the Fourth Circuit to clarify whether the 'first-filed' 'dictum'" in McKinney v. Board of Trustees of Mayland Community College, 955 F.2d 924 (4th Cir. 1992), "means what it actually seems to say." (J.A. 132). The district court also reaffirmed its earlier ruling on the preemption issue, but, curiously, the district court did not address the Retirees' request for reconsideration of the statute of limitation issue.

The Retirees noted a timely appeal. On appeal, a divided panel of this court affirmed the district court's ruling that the joint notice of removal had been timely filed, but reversed its holding that the Retirees' claims were completely preempted by federal labor law. See Barbour v. Int'l Union, 594 F.3d 315 (4th Cir. 2010). On May 6, 2010, the panel opinion was vacated, as a majority of active circuit judges voted to rehear this case en banc. See Fourth Circuit Local Rule 35(c) ("Granting of rehearing en banc vacates the previous panel judgment and opinion.").

II On appeal, the Retirees first challenge the district court's ruling that the joint notice of removal was timely filed.

Our review is de novo. See Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th Cir. 2006) ("For questions concerning removal to federal court, our standard of review is de novo.").

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, . . . which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). We presume "that a cause lies outside this limited jurisdiction, . . . and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. Removal statutes, in particular, must be strictly construed, inasmuch as the removal of cases from state to federal court raises significant federalism concerns. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941) ("The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution."); see also Healy v. Ratta, 292 U.S. 263, 270 (1934) ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined."); Maryland Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255, 260 (4th Cir. 2005) (noting our duty to construe removal jurisdiction strictly because of the significant federalism concerns implicated by removal). Doubts about the propriety of removal should be resolved in favor of remanding the case to state court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (en banc); Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).

Section 1441(a) of Title 28 of the United States Code provides that "the defendant or the defendants" may seek to remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction."

28 U.S.C. § 1441(a). Section 1446 of Title 28 describes the appropriate removal procedure to invoke federal jurisdiction, and requires the defendant seeking removal to file a timely notice of removal stating the grounds for removal with the appropriate federal district court. Id. §§ 1446(a) & (b). In order to be timely, [t]he 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.

Id. § 1446(b). The thirty-day window for removal is designed to prevent "undue delay in removal and the concomitant waste of state judicial resources." Lovern v. Gen. Motors Corp., 121 F.3d 160, 163 (4th Cir. 1997).

If a case involves a single defendant, the operation of § 1446(b) is straightforward. The defendant must file the notice of removal within thirty days of service. When a case involves multiple defendants, the operation of § 1446(b) gets precarious, because, unlike § 1446(a), § 1446(b) does not speak in terms of multiple defendants. Clearly, if all of the defendants are served on the same day, the notice of removal must be filed within thirty days of the date of service, and all the defendants must consent to and join the notice of removal. See Creasy v. Coleman Furniture Corp., 763 F.2d 656, 660 (4th Cir. 1985) (noting that "all of the defendants must agree to the removal of the state court action"); see also Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681 (9th Cir. 2006) (noting that all served defendants must join in the notice of removal); Gossmeyer v. McDonald, 128 F.3d 481, 489 (7th Cir. 1997) (same). However, if the defendants are served on different days, two questions arise. First, must the notice of removal be filed within thirty days of service on the first-served defendant or can the notice be filed within thirty days of service on the last-served defendant? Second, if the notice of removal must be filed within thirty days of service on the first-served defendant, do all of the defendants have to join the notice within thirty days of service on the first-served defendant or can each defendant join within thirty-days of the date they are served?

The first circuit court to tackle the defendants-served-on-different-days dilemma was the Fifth Circuit in Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986). In that case, the plaintiff filed an action in Louisiana state court and promptly served the then-existing defendants. Id. at 480. After a lengthy period of discovery, the plaintiff added two additional defendants. Id. The additional defendants promptly sought removal, with the consent of the original-served defendants. Id. In response, the plaintiff and the intervenor-insurer moved to remand the case to state court on the ground that the removal was untimely. Id. The district court denied the motion, and the intervenor-insurer sought and obtained permission to appeal. Id.

On appeal, the Brown court reversed. After finding that the intervenor-insurer had standing to challenge the denial of the motion to remand, the Brown court observed that "[t]he general rule . . . is that '[i]f the first served defendant abstains from seeking removal or does not effect a timely removal, subsequently served defendants cannot remove . . . due to the rule of unanimity among defendants which is required for removal.'" Id. at 481 (quoting Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen & Assistants' Local 349, 427 F.2d 325, 326-27 (5th Cir. 1970)). In so observing, the Brown court rejected the notion that the "general rule" was unfair because it prevented later-served defendants from persuading earlier-served defendants to remove the case:

[W]e do not perceive the suggested unfairness to the subsequently added defendant who is merely not granted an opportunity that might have been available to others. A defendant who is added to a case in which a co-defendant has failed to seek removal is in no worse position than it would have been in if the co-defendant had opposed removal or were domiciled in the same state as the plaintiff. Id. at 482.

The Brown court only answered the first question-when must the notice of removal be filed-posed by the defendants-served-on-different days dilemma. Two years later, however, in Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254 (5th Cir. 1988), the Fifth Circuit addressed the second question, that is, whether later-served defendants must join the notice of removal within the first-served defendant's thirty-day window. The court answered the question in the affirmative, adopting what is commonly referred to as the "First-Served Defendant Rule." Id. at 1262-63. Succinctly put, the First-Served Defendant Rule requires a notice of removal to be filed within thirty days of service on the first-served defendant and requires all defendants to join the notice of removal within the first-served defendant's thirty-day window.

In Getty Oil, three defendants were served, the first on September 3, 1986, the second on September 5, 1986, and the third on September 24, 1986. Id. at 1256. The first and second defendants petitioned for removal on September 26, 1986, but the third defendant joined the petition on October 24, 1986, which was thirty days after it was served but fifty-one days after the first defendant was served. Id. The Getty Oil court held that: (1) a notice of removal must be filed within thirty days of the date of service on the first-served defendant and (2) a later-served defendant must join the notice of removal "no later than thirty days from the day on which the first defendant was served." Id. at 1263. In so holding, the Getty Oil court reasoned that the First-Served Defendant Rule promotes unanimity among the defendants without placing undue hardships on subsequently served BARBOUR v. INTERNATIONAL UNION defendants. Indeed, if a removal petition is filed by a served defendant and another defendant is served after the case is thus removed, the latter defendant may still either accept the removal or exercise its right to choose the state forum by making a motion to remand.

Id. (footnote omitted). The court also noted that, "by restricting removal to instances in which the statute clearly permits it, the [First-Served Defendant Rule] is consistent with the trend to limit removal jurisdiction and with the axiom that the removal statutes are to be strictly construed against removal." Id. n.13.

Almost four years after Getty Oil, we addressed the two questions raised by the defendants-served-on-different-days dilemma and adopted what is commonly referred to as the "McKinney Intermediate Rule." Like the First-Served Defendant Rule, the McKinney Intermediate Rule requires a notice of removal to be filed within the first-served defendant's thirty-day window, but gives later-served defendants thirty days from the date they were served to join the notice of removal.

In McKinney, a group of dismissed employees of Mayland Community College sued the college's board of trustees in their individual and official capacities in North Carolina state court, alleging unlawful discharge. 955 F.2d at 925. Three of the twelve defendants were served on April 25, 1988, while eight others were served on May 19, 1988. Id. The three members of the first group and seven of the eight from the second group filed for removal on May 25, 1998, thirty days after service on the first three. Id. The defendants could not find the eighth defendant in the second group to obtain her consent to the notice of removal. Id. The plaintiffs served the final, twelfth defendant after the filing of the notice of removal. Id. The eighth and twelfth defendants joined in the notice of removal on June 20, 1998, which was the thirtieth day from the time of service on the eighth defendant and well within the time limit for the twelfth defendant, but more than thirty days after the first three defendants had been served. Id.

In moving to remand the case to state court, the plaintiffs argued that the defendants were required to consent to the notice of removal within thirty days of service on the first group of defendants. Id. The district court rejected that contention, holding that individual defendants have thirty days from the time they are served with process or with a complaint to join in an otherwise valid notice of removal. Id.

Our decision in McKinney addressed both of Getty Oil's holdings concerning the timeliness of removal. With regard to Getty Oil's first holding, we noted our explicit agreement with that holding, stating that the first-served defendant "clearly must petition for removal within thirty days." Id. at 926. In Footnote 3 of our opinion, we agreed with the necessary corollaries to the principle that a timely notice of removal must be filed within thirty days of service on the first-served defendant:

In a different situation, where B is served more than 30 days after A is served, two timing issues can arise, and the law is settled as to each. First, if A petitions for removal within 30 days, the case may be removed, and B can either join in the petition or move for remand. . . . Second, if A does not petition for removal within 30 days, the case may not be removed. Id. at 926 n.3.*fn3

With regard to Getty Oil's second holding, that a later-served defendant must join the notice of removal within thirty days of the date of service on the first-served defendant, we rejected that holding. In doing so, we made three observations. First, we observed that nothing in § 1446(b) implied "in any way that later served defendants have less than thirty days in which to act." Id. Second, we observed that it would be "inequitable" to require a later-served defendant to join a timely filed notice of removal within thirty days of the date of service on the first-served defendant. Id. at 927. Third, we observed that to require a later-served defendant to join a timely filed notice of removal within thirty days of the date of service on the first-served defendant would necessitate adding the term "first" before "defendant" in § 1446(b). Id.

We then turned to plaintiffs' argument that they should be entitled to know within a prescribed period of time whether the case will proceed in state or federal court. In rejecting this argument, we first noted that, if the plaintiffs wanted to know in which court they will be at the earliest possible date, they need only to make sure that all defendants are served at about the same time. Id. Second, we noted that the plaintiffs' entitlement was no greater than the defendant's right to remove a case that could be heard in federal court. Id. 2d 391, 393 n.4 (D. Md. 2002) (opining that Footnote 3 and our approval of Getty Oil's first holding are dicta); Branch v. Coca-Cola Bottling Co. Consol., 83 F. Supp. 2d 631, 634 (D.S.C. 2000) (same). Nevertheless, only one district court in this circuit has declined to follow the McKinney Inter-mediate Rule. See Ratliff v. Workman, 274 F. Supp. 2d 783, 787 (S.D. W. Va. 2003) (declining to follow McKinney Intermediate Rule because of intervening Supreme Court precedent, namely, Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)). As the court is sitting en banc, it is unnecessary to decide whether Footnote 3 and our approval of Getty Oil's first holding are dicta. Cf. Hoffman v. Hunt, 126 F.3d 575, 584 (4th Cir. 1997) ("A decision of a panel of this court becomes the law of the circuit and is binding on other panels unless it is overruled by a subsequent en banc opinion of this court or a superseding contrary decision of the Supreme Court.") (citations and internal quotation marks omitted).

Finally, we considered a policy concern in McKinney, which was not present when Getty Oil was decided. In 1988, Congress amended § 1446(a) to make notices of removal subject to Rule 11 of the Federal Rules of Civil Procedure. Id. at 928. We observed that, as amended, § 1446(a) is a further reason to allow all defendants a full thirty days to investigate the appropriateness of removal. Id. Otherwise, a later-served defendant faces a Hobson's Choice: either to join hurriedly in a notice of removal and face possible Rule 11 sanctions or to forego removal. Id. In the McKinney court's view, Congress did not intend to impose such a Hobson's Choice on a later-served defendant. Id.

Since our decision in McKinney, three other circuits have addressed the defendants-served-on-different days dilemma and have rejected the First-Served Defendant Rule and the McKinney Intermediate Rule in favor of what is commonly referred to as the "Last-Served Defendant Rule." See Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1209 (11th Cir. 2008); Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 757 (8th Cir. 2001); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999). In a nutshell, the Last-Served Defendant Rule "permits each defendant, upon formal service of process, thirty days to file a notice of removal pursuant to § 1446(b)," Bailey, 536 F.3d at 1209, and "[e]arlier-served defendants may choose to join in a later-served defendant's motion or not." Id. at 1207.

In Brierly, the plaintiff filed a wrongful death action in Kentucky state court on May 12, 1994, naming two defendants. 184 F.3d at 530. The first was promptly served in June 1994, but the second was not served until the fall of 1995. Id. at 530-31. Within thirty days of being served, the second defendant filed a notice of removal which was consented to by the first defendant. Id. at 531. Thereafter, the district court denied the plaintiff's motion to remand. Id.

In adopting the Last-Served Defendant Rule, the Brierly court opined that adopting the First-Served Defendant Rule would require the court to insert the word "'first'" into § 1446(b). Brierly, 184 F.3d at 533. The court also observed that, "[i]f Congress had intended the 30-day removal period to commence upon service of the first defendant, it could have easily so provided." Id. Finally, the court was persuaded that the Last-Served Defendant Rule was necessary "as a matter of fairness to later-served defendants." Id.

In Marano, the plaintiff filed a fraud and breach of contract action in Missouri state court. 254 F.3d at 754. Two of the defendants were served on February 1, 2000, and two were served on February 3, 2000. Id. On March 3, 2000, thirty-one days after the February 1 service, but twenty-nine days after the February 3 service, all the defendants (including the fifth and final defendant who had not yet been served) jointly filed a notice of removal. Id. The plaintiff filed a motion to remand, which the district court denied. Id.

In its analysis, the Marano court outlined the holdings of the Fifth Circuit in Brown and Getty Oil, our circuit in McKinney, and the Sixth Circuit in Brierly and, without discussion, found none of the positions "particularly compelling" because they are all "susceptible to abuse and have potential to create inequities." Id. at 756. However, the Marano court was persuaded to adopt the Last-Served Defendant Rule based on the Supreme Court's decision in Murphy Brothers. Id. at 756-57. In Murphy Brothers, the Court held that a defendant's time to remove "is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, 'through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." 526 U.S. at 348. According to the Marano court, [In Murphy Brothers,] [t]he Court held that formal process is required, noting the difference between mere notice to a defendant and official service of process: "An individual or entity named as a defendant is not obliged to engage in litigation unless noti- fied of the action, and brought under a court's authority, by formal process." . . . Thus, a defendant is "required to take action" as a defendant-that is, bound by the thirty-day limit on removal-"only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend." . . . The Court essentially acknowledged the significance of formal service to the judicial process, most notably the importance of service in the context of the time limits on removal (notwithstanding an earlier admonition by the Court in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868, 85 L. Ed. 1214 (1941), for strict construction of the removal statute). We conclude that, if faced with the issue before us today, the Court would allow each defendant thirty days after receiving service within which to file a notice of removal, regardless of when-or if-previously served defendants had filed such notices.254 F.3d at 756.

In Bailey, the plaintiff brought a wrongful death action in Florida state court on February 28, 2006. 536 F.3d at 1204. The first defendant was served on May 12, 2006, the second on May 15, 2006, the third on May 19, 2006, and the fourth on June 22, 2006. Id. On July 24, 2006 (July 22 was a Saturday), the fourth-served defendant filed a notice of removal of the action based on complete diversity pursuant to § 1446(b). Id. The plaintiff filed a motion to remand, which the district court denied. Id.

On appeal, the Bailey court put forth a variety of reasons supporting its decision to adopt the Last-Served Defendant Rule. Id. at 1205-09. First, the court recognized that the Last-Served Defendant Rule was the more recent trend in the case law. Id. at 1205-06. Second, the court was driven by equitable considerations, expressing concern that the First-Served Defendant Rule: (1) causes later-served defendants to lose their statutory right of removal through no fault of their own; and (2) eliminates the opportunity for later-served defendants to persuade earlier-served defendants to seek removal. Id. at 1206-07. Third, the Bailey court reasoned that the First-Served Defendant Rule requires reading "first-served" into § 1446(b), whereas § 1446(b), "as written, could reasonably be read to permit each defendant a right to remove within thirty days of service on the individual defendant." Id. at 1207. Fourth, the Bailey court was not convinced that the First-Served Defendant Rule was more consistent with the rule of unanimity than the Last-Served Defendant Rule Id. Finally, the Bailey court agreed with the Marano court that the Supreme Court's decision in Murphy Brothers supported the endorsement of the Last-Served Defendant Rule. Id. at 1207-09.

In our view, the McKinney Intermediate Rule is the most logical and faithful interpretation of the operation of § 1446(b). When interpreting any statute, we must first and foremost strive to implement congressional intent by examining the plain language of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Section 1446(b) says that if you are a defendant in a cause of action you are under an obligation to seek removal within thirty days of receipt of the plaintiff's complaint. If you do not seek removal within the thirty-day window, you have forfeited your right to remove. Here, because the International did not seek removal within its thirty-day window, the plain language of § 1446(b) dictates that it forfeited its right to removal.

The question, then, is whether we should decline to follow the plain language of § 1446(b) simply because there is more than one defendant in the case who was served on a different day. In our view, it defies logic to read § 1446(b) any differently based on this circumstance, because the language of § 1446(b) unequivocally requires action by a defendant (seeking removal within thirty days of being served), not inaction. Equally illogical is the proposition that a first-served defendant in a multiple-defendant case should believe he or she does not have to act simply because there will be later-served defendants in the case who may or may not file a notice of removal. In such a scenario, the first-served defendant's excuse for failing to file a timely notice of removal borders on preposterous-"I did not file a notice of removal because I was 'a' defendant instead of 'the' defendant."

To be sure, it seems eminently reasonable that, in drafting § 1446(b), Congress intended for the first-served defendant to decide within his thirty-day window whether to remove the case to federal court or allow the case to remain in state court. Such routine removal decisions are made day-in and day-out in courts all across the Nation. If the first-served defendant decides not to remove, later-served defendants are not deprived of any rights under § 1446(b), because § 1446(b) does not prevent them from removing the case; rather, it is the rule of unanimity that does. In other words, once the first-served defendant elects to proceed in state court, the issue concerning removal is decided under the rule of unanimity. Alternatively, if the first-served defendant does file a notice of removal, the later-served defendants dictate whether the case remains in federal court, either by joining the notice or declining to do so.

There is a "'strong presumption' that the plain language of the statute expresses congressional intent," Ardestani v. INS, 502 U.S. 129, 135 (1991), and it is only in rare and exceptional cases where this presumption is rebutted. Id. In this case, we see no reason to depart from applying the plain lan- guage of § 1446(b) and letting each defendant, beginning with the first-served defendant, decide whether the case should be removed. If the first-served defendant files a notice of removal, later-served defendants have ample time-thirty days from the date that each such defendant is served-to decide whether to join the notice of removal, thus avoiding the Hobson's Choice we identified in McKinney. While the operation of § 1446(b) may appear unfair to some, such operation is an inevitable feature of a court of limited jurisdiction. Cf. Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001) ("There are several such bright line limitations on federal removal jurisdiction (e.g. the removal bar for in-state defendants and the one year time limit for diversity removals) that some might regard as arbitrary and unfair. Such limitations, however, are an inevitable feature of a court system of limited jurisdiction that strictly construes the right to remove.").

The McKinney Intermediate Rule obviously avoids the fatal flaw in the Last-Served Defendant Rule: The Last-Served Defendant Rule only applies § 1446(b) to one defendant-the last-served. Innumerable defendants can intentionally ignore § 1446(b) if the last-served defendant can convince the earlier-served defendants that their intentional decision was in error.*fn4 It strains ...


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