Delalla v. Hanover Insurance, 660 F.3d 180 (3d Cir. 2011). The federal removal statute, 28 U.S.C. §1446(b), obligates a defendant who wishes to remove to federal court a case filed in state court to file removal papers within 30 days of the date on which the plaintiff serves “the defendant.” There is a Circuit split on the issue of how to determine the deadline in multi-defendant cases. Two Circuits have ruled that the trigger date for all defendants is 30 days after the first defendant is served, regardless of when the defendant who seeks to remove is served, a rule known as the “first-served rule.” Four other Circuits say, in contrast, that each defendant has 30 days from the date that that defendant is served, a principle labeled the “later-served rule.” In an opinion by Judge Smith, the Third Circuit joined the majority, finding that the “later-served rule” was superior, “for reasons grounded in statutory construction, equity and common sense.”
Judge Smith first found that the later-served rule is supported by the “plain text” of section 1446(b). Moreover, the panel analyzed the conflicting decisions from other Courts of Appeals and found the reasons expressed by the Fourth and Fifth Circuits, the two courts that have adopted the first-filed rule, unpersuasive. Judge Smith agreed with the opinions of the Sixth, Eighth, Ninth and Eleventh Circuits that found the later-served rule to be correct.
At some point, the Supreme Court of the United States may weigh in on this issue. Meanwhile, for those who practice in the Third Circuit, that court has, for the first time in a precedential opinion, come down in favor of the later-filed rule.