Tuesday, November 15, 2011

Third Circuit Court of Appeals Adopts "Later Served" Rule for Federal Removal Statute

The Third Circuit Court of Appeals recently address the issue of the proper timing of the filing of a Notice of Removal of a case from state court to federal court in a multi-defendant lawsuit.

Under Section 1446(a) of the U.S. Code, "a defendant or defendants" seeking removal to federal court are required to file a notice of removal.

Section 1446(b) of the Code requires that the notice of removal to be filed within 30 days "after receipt by the defendant" of the plaintiff's initial pleading or summons.

In cases involving multiple defendants, the question arises in terms of when does the time to remove the case to federal court expire.  The Third Circuit Court of Appeals recently answered that question by adopting what is known as the "later served" rule in the case of Delalla v. Hanover Insurance, ___ F.3d ___ (3d Cir. Oct. 12, 2011 Slovitzer, Nygaard, Smith, J.)(Opinion by Smith, J.).

According to the opinion in Delalla four federal courts of appeals across the nation have adopted a "later-served rule," which construes §1446(b) to give each and every defendant 30 days from the date that particular defendant was served to file a notice of removal.

The Fourth and Fifth Circuits, meanwhile, have adopted a "first-served rule" which requires the notice to be filed within 30 days of the date on which the first defendant was served.

In this case, the Third Circuit Court of Appeals adopted the "later-served rule" as the more reasonable and just approach to the issue.

Anyone desiring to review this opinion may find it online here:

http://www.ca3.uscourts.gov/opinarch/103933p.pdf


Source:  "Case Digest" Pennsylvania Law Weekly (11/8/11).

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