Recent Amendments To Federal Removal Statutes Create New Possibilities And Potential Pitfalls For Litigators

Litigators should be aware of recent noteworthy amendments to the federal removal statutes. 28 U.S.C. §§ 1441, 1446. The removal amendments, brought about by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, PL 112-63, December 7, 2011, 125 Stat 758, apply to all actions "commenced" in state court on or after January 6, 2012. The first change resolves a circuit split over the time for removal in a case involving multiple defendants, where each defendant is not served at the same time. The second change strips federal district courts of removal jurisdiction they previously possessed over state law claims not within the court's original or supplemental jurisdiction. These changes present litigators with significant tactical choices and opportunities.

Adopting the "Later-Served Defendant" Rule for Removal

Under the Act, when multiple defendants are sued in state court, each defendant now has 30 days to file a notice of removal to federal district court, starting from the date that the defendant itself was served, not from the date the first defendant was served. Before the Act, there was a deep circuit split between circuits adopting this so-called "later-served" rule and those adopting the "first-served" rule, which required any defendant seeking removal to file the notice of removal within 30 days of the date the first defendant is served. Compare Delalla v. Hanover Ins., 660 F.3d 180, 182 (3d Cir. 2011) (adopting "later-served" rule) with Barbour v. Int'l Union, 640 F.3d 599, 610 (4th Cir. 2011) (adopting "first-served" rule).

Defendants seeking removal to federal court under 28 U.S.C. § 1441 must do so according to the procedures in 28 U.S.C. § 1446. Prior to the amendment, Section 1446(a) required a "defendant or defendants desiring to remove" an action to file a notice of removal. Old Section 1446(b) provided that a notice of removal "shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading ... or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." Because Section 1446(a) referred to a "defendant or defendants," but Section 1446(b) referred only to "receipt by the defendant," the prior version raised the question of whose receipt of the complaint triggered the 30-day clock for removal, the first...