N.D. California Discusses Circuit Split Re: Whether Later Served Defendant May Remove When Initial 30 Days Have Passed; Adopts Last-Served Rule
Per Bonner v. Fuji Photo Film, 461 F. Supp. 2d 1112 (N.D. Cal. Nov. 13, 2006):
The case thus squarely poses an unsettled question of law: may a later-served defendant remove a case even though the thirty-day removal period has already expired as to the first-served defendant? In other words, does the thirty-day period begin to run as to all defendants when it begins to run as to any of them (the "first-served rule"), or does each defendant have its own thirty-day clock (the "last-served rule")? The Ninth Circuit has not decided a case squarely on point. See United Computer Sys. v. At & T Corp., 298 F.3d 756, 763 n. 4 (9th Cir.2002) (noting a split of authority on the issue but "express[ing] no opinion today on the propriety of either rule").
The circuit courts are divided on the issue. Compare Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir.1986) (applying the first-served rule), with Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 756-57 (8th Cir.2001) (applying the last-served rule); and Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 & n. 3 (6th Cir.1999) (applying the last-served rule); see also McKinney v. Bd. of Tr. of Md. Cmty. College, 955 F.2d 924, 927-28 (4th Cir.1992) (applying a variant of the first-served rule that allows new defendants thirty days to join an "otherwise valid" petition for removal). And district courts have come to competing conclusions, even within the Ninth Circuit. Compare McAnally Enters. Inc. v. McAnally, 107 F.Supp.2d 1223, 1227-29 (C.D.Cal.2000) (applying first-served rule), and Biggs Corp. v. Wilen, 97 F.Supp.2d 1040, 1044-46 (D.Nev.2000) (same), and Transp. Indem. v. Fin. Trust Co., 339 F.Supp. 405, 406-07 (C.D.Cal.1972) (same), with Griffith v. Am. Home Prods. Corp., 85 F.Supp.2d 995, 1000-01 (E.D.Wash.2000) (applying last-served rule). Indeed, even judges within the Northern District of California have not agreed upon the proper approach. Compare Varney v. Johns-Manville Corp., 653 F.Supp. 839, 840 (N.D.Cal.1987) (applying first-served rule), with Ford v. New United Motors Mfg., Inc., 857 F.Supp. 707, 710 (N.D.Cal.1994) (applying last-served rule).
It is not possible to discern a preferred approach to this issue among the courts that have addressed it. Several courts have described the "first-served rule" as the "majority rule." See McAnally, 107 F.Supp.2d at 1227; Wilen, 97 F.Supp.2d at 1044; see also 14C Wright et al., Federal Practice and Procedure § 3732, at 336-39 & nn. 74-75 (citing a significantly larger number of cases adopting the first-served rule). Yet the cases also indicate a trend away from that rule and in favor of the last-served rule. . . . This Court hereby adopts the last-served rule. The Court is persuaded that this rule is preferable . . . .