Civil Litigation Legal Topics New Legal Developments

Removal Ruling Is Good News for Defendants

There are many reasons why a defendant in California might want to remove the case against them to federal court. But, as the Cal Biz Lit blog explains, the 30-day time limit for removal creates a “chronic problem” — does the time run from service on the first defendant or the last defendant?

The right to remove a case to federal court is ephemeral: It exists only briefly and will be lost unless it is exercised in an expeditious fashion. In California, if a case is removable based on the original complaint, it must be removed within 30 days after the defendant is formally served with the summons and complaint. 28 USC §1446(b). This 30-day period is strict and is not extended by a stipulation by counsel extending the time to answer, plead, move, or otherwise respond to the complaint. See Transport Indem. Co. v Financial Trust Co. (CD Cal 1972) 339 F Supp 405.

As with many things in the law, the time period is clear but when it begins to run is a little murky. There’s a split among the federal courts as to whether the 30 days start running as to all defendants when the first defendant is served, the so-called “first served rule” (Brown v Demco, Inc. (5th Cir 1986) 792 F2d 478, 481), or whether each defendant gets its own 30-days from its service, i.e., the “later served rule” (Brierly v Alusuisse Flexible Packaging, Inc. (6th Cir 1999) 184 F3d 527, 533.

The Ninth Circuit has just weighed in and clarified this issue for federal courts in California, and the decision will make defendants happy: The later-served rule applies to give each defendant thirty days in which to remove after that defendant has been brought into the case. Destfino v Kennedy (9th Cir, Jan. 21, 2010, No. 09-16214).

For everything you need to know about removal to federal court, go to CEB’s California Civil Procedure Before Trial, chap 22.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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