Thursday, October 13, 2011

federal courts - removal - 30-day limit

DeLalla v. Hanover Insurance - Third Circuit - October 13, 2011

In order to remove a lawsuit filed in state court to a federal district court under the federal removal statute, 28 U.S.C. ยงยง 1441, 1446, a defendant must file a notice of removal within thirty days of the date on which the plaintiff serves the defendant.

Courts have split in interpreting this thirty day limitation: the Fourth and Fifth Circuits have held that the thirty day period ends thirty days after the first defendant is served (the first-served rule), and the Sixth, Eighth, Ninth, and Eleventh Circuits have held that each defendant has a thirty day period to file a notice of removal that ends thirty days after that defendant is served (the later-served rule).

The Third Circuit decided that the later-served rule represents "the most faithful and equitable reading of the removal statute" and affirmed the District Court order.