Thursday, February 04, 2010, 3:24 PM

Fourth Circuit Adopts Last Served Rule to Determine Time for Removal

Today, in a divided opinion, the Fourth Circuit Court of Appeals determined that in multi-defendant cases, each defendant has thirty days from the time they are served with the summons and complaint to file a notice of removal in federal court. The case is Barbour v. International Union.

Federal statutes provide that a party has thirty days from the date they are served with the summons and complaint to file a notice of removal. However, a dispute arose between the district courts in the Fourth Circuit over when this thirty day period begins to run in cases with multiple defendants who are not served simultaneously. Certain district courts applied the "first-served" rule. This rule begins the thirty day period for removal as soon as the first defendant isserved. Once the thirty day period for the first-served defendant to remove expired, all other defendants were precluded from removing. Other district courts applied the "last-served" rule which provides each defendant with thirty days to remove from the time they are served. Earlier served defendants have the option of joining the notice of removal or may move to remand the action to the state court.

The Fourth Circuit determined that the last-served rule was the more appropriate rule because the first-served rule gave rise to the potential for too many inequitable situations. In short, the first-served rule allows one defendant to waive the rights of another defendant without their consent and may require parties to appear in a case prior to being served in order to protect their right to removal. The majority indicated that any potential for prejudice against the plaintiff created by the last-served rule could be minimized "by serving the defendants as contemporaneously as possible[.]"

Judge Hamilton dissented from the portion of the majority's opinion that adopted the last-served rule. He criticized the majority for disregarding portions of the Fourth Circuit's opinion in McKinney v. Board of Trustees of Maryland Community College, 955 F.2d 924 (4th Cir. 1992), which he considered binding precedent on this issue.

This decision clears up this issue in the Fourth Circuit for the time being. If the Fourth Circuit's opinion is appealed, the Supreme Court may decide to hear it because, as the majority noted, there is a circuit split on the first-served/last-served issue.

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