Fourth and Ninth Circuits Deepen Split Over Deadline for Removal When Defendants in Multi-Defendant Case Are Served at Different Times

Originally published February 7, 2011

Keywords: Removal deadline, federal court, first-served defendant, last-served defendant, multi-defendant, Barbour, Destino.

Under 28 U.S.C. § 1446(b), defendants may remove a civil case from state to federal court if the case originally could have been filed in federal court and if the notice of removal is filed within 30 days after the receipt by the defendant of a copy of the initial pleading or the service of summons. However, courts disagree on how this 30-day deadline applies in multi-defendant cases when different defendants were served on different days.

Most circuits that have considered the issue follow the last-served-defendant rule, under which each defendant gets its own 30-day window to file a notice of removal, with earlier-served defendants permitted to join in any subsequent notice of removal. The Fifth Circuit, by contrast, has adopted a first-served-defendant rule, under which the 30-day clock starts