Opinion
CIVIL ACTION NO. 03-1110.
May 13, 2003.
MEMORANDUM AND ORDER
Currently before the Court are Plaintiff's Motion to Remand Proceedings to State Court Pursuant to 2 U.S.C. § 1447(c) (Docket No. 5), Answer of Defendants, Jeffrey Swan, Sr., Thermo Forma, Inc., and Thermo-Electron Corporation, to Plaintiff's Motion to Remand and for Attorney's Fees (Docket No. 6), and Plaintiff's Sur Reply Brief for Petition for Remand to State Court (Docket No. 9).
I. BACKGROUND
This case arises out of a November 2, 2001 automobile accident, in which Plaintiff was allegedly struck by an automobile driven by Defendant Swan. On April 19, 2002, Plaintiff initiated the instant action in the Court of Common Pleas for Philadelphia County against Defendant Jeffrey Swan, and Thermo Electron Corporation, the entity that Plaintiff originally thought employed Defendant Swan. Defendants filed an answer on May 22, 2002, denying the allegation that Plaintiff was an employee of Thermo Electron, instead averring that Defendant was employed by Thermo Forma, Inc. Plaintiff filed an amended complaint on February 13, 2003, adding Defendant Thermo-Forma, Inc. Thereafter, on February 26, 2003, Defendant Therma-Forma, Inc. filed a Notice of Removal to Federal Court.
Plaintiff comes before the Court seeking remand to State Court under the "First Defendant" doctrine. For the reasons set forth below, Plaintiff's motion is denied.
II. LEGAL STANDARD
A. Removal Standard
_____ 28 U.S.C. § 1441(a) provides, in pertinent part:
[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
A defendant seeking removal of an action must file a petition for removal with the district court within thirty days of Plaintiff's service of the complaint upon defendant. See 28 U.S.C. § 1446(b). The suit, therefore, will remain in state court or be remanded if removal violates the thirty-day limit.Smith v. Mail Boxes, Etc. USA, Inc., 191 F. Supp.2d 1155, 1158 (E.D. Cal. 2002) Removal is governed by the "rule of unanimity," requiring that a removal petition is joined by all defendants.See Chicago, R.I. P. Ry. Co. v. Martin, 187 U.S. 245, 248 (1945).
III. DISCUSSION
A. Motion to Remand
Plaintiff asserts that a remand is mandated in the instant case because Plaintiff filed her complaint on April 19, 2002, while Thermo Forma, Inc. filed its notice of removal, on February 26, 2003. Defendants counter that the petition for removal is within the thirty-day confines of § 1446(b) due to the fact that Defendant, Thermo Forma Inc., was not party to the case until February 13, 2003, when Plaintiff filed an amended complaint.
1. First-Served Defendant
_____ Plaintiff advocates the "first-served" defendant rule, which provides that the thirty-day limit of § 1446(b) begins to run after the first defendant is served. See Orlick v. J.D. Carton Son, Inc., 144 F. Supp.2d 337, 342 (N.J. 2001) (quoting N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 887 n. 4 (5th Cir. 1998) for its proposition that "[i]f the first served [sic] defendant abstains from seeking removal or does not effect a timely removal, subsequently served defendants cannot remove . . . due to the rule of unanimity among defendants which is required for removal") (emphasis in original). Under this analysis there exists only one thirty-day window of opportunity to remove a case to federal court.
2. Later-Served Defendant
_____ The "later-served defendant" rule provides that "each defendant to an action is entitled to thirty days after service to remove an otherwise removable action and . . . all defendants can consent to that removal, even if their own thirty-day periods have expired." See Griffith v. Am. Home Prod., 85 F. Supp.2d 995. 998 (E.D Wa. 2000). Courts subscribing to this analysis reason that § 1446(b) in no way indicates that later-served defendants are not afforded a thirty-day removal period. See McKinney v. Bd. of Trustees of Maryland Cmty. Coll., 955 F.2d 924, 926 (4th Cir. 1992); see also Goularte v. ABEX Corp., No. 97-1265, 1997 WL 294397, at *2 (N.D. Cal. May 28, 1997) (holding that "[a]lthough a `first-served' defendant may waive its own right to remove by failing to timely do so, [§ 1446(b)] does not place a time limit on consent to removal . . . [c]reating such a limit would effectively remove the protections of the removal statutes from defendants who have the misfortune to be served late in the action.").
3. Murphy Bros. v. Michetti Pipe Stringing, Inc.
The Supreme Court decision, Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 199 S.Ct. 1322, 143 L.Ed.2d 448 (1999) clarified when the clock begins to run for removal purposes. The Court held that a defendant's removal period is "triggered by simultaneous service of the summons and complaint, or receipt of the complaint . . . after and apart from service of the summons, but not by mere receipt of the complaint unattended by formal service." Id. at 347-38.
In Murphy Brothers plaintiff filed suit in state court. Three days later, plaintiff faxed a courtesy copy of the complaint to defendant. Id. at 348. Seventeen days later, plaintiff properly served defendant. Id. Thirty days after proper service, but forty-four days after receiving a courtesy copy of the complaint, defendant removed the case to federal court. The question before the Court was "whether the named defendant must be officially summoned to appear in the action before the time to remove begins to run." 526 U.S. at 347.
The Court recognized that a court's authority over a party begins only after the party is served by formal process. Id. at 350. "An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process." Id. at 347.
5. Analysis
Proponents of the "later-served" defendant rule emphasize the fact that the rule prevents plaintiffs from manipulating service in order to block removal. Under the "first-served" rule, a plaintiff may intentionally limit initial service to defendants who are unsophisticated in federal practice, and therefore, unlikely to remove. Id. at 1161. The failure of this defendant to remove the case should not foreclose a subsequently added defendant's ability to remove as well. Id.
The later-served rule also promotes forum resolution at an early stage of the litigation by removing any incentive for plaintiff to not identify all defendants at the initial stages.See id. The rule will also reduce the uncertainties involved with adding defendants at later stages of litigation. Moreover, the burden of identifying and serving all defendants rests with the plaintiff. See Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P., 254 F.3d 753, 755 n. 3 (8th Cir. 2001). A later-served defendant should not suffer for plaintiff's mistakes or omissions.
An appropriate Order follows.
ORDER
AND NOW, this 13th day of May, 2003, upon consideration of Plaintiff's Motion to Remand Proceedings to State Court Pursuant to 2 U.S.C. § 1447 (c) (Docket No. 5), Answer of Defendants, Jeffrey Swan, Sr., Thermo Forma, Inc., and Thermo-Electron Corporation, to Plaintiff's Motion to Remand and for Attorney's Fees (Docket No. 6), and Plaintiff's Sur Reply Brief for Petition for Remand to State Court (Docket No. 9), IT IS HEREBY ORDERED that Plaintiff's Motion is DENIED.