In a precedential opinion issued on October 12 in the case of DeLalla v. Hanover Ins., No. 10-3933 (3rd Cir. Oct. 12, 2011), the Third Circuit finally picked a side on the question of whether a later-served defendant can remove a case filed in state court more than thirty days after the first defendant was served with the Complaint. But first, some background.

28 U.S.C. § 1446(a) allows a defendant in an action filed in state court to remove that action to federal court if it otherwise could have been filed in federal court. But there’s a catch — the Notice of Removal must be filed “within thirty days after the receipt by the defendant . . . of a copy of the initial pleading . . . .” 28 U.S.C. § 1446(b). But which defendant is THE defendant? Two circuits, the Fourth and the Fifth, have held that THE defendant is the first defendant served, and once its thirty days have run, the case can no longer be removed, even by a defendant who was served later but whose thirty days have yet to run. And while the “first served” rule seems, and is, harsh, it’s not wholly without merit, because where there are multiple defendants, all must agree to the removal. So, the Fourth and Fifth Circuits reason, if the first served defendant didn’t remove within 30 days, it presumably would not agree to removal by a later defendant, and reviving a lost right would be providing the defendant with the proverbial second bite at the apple.

Other circuits courts have been more understanding of the plight of the later-served defendant. In its harshest application, a defendant served more than thirty days after service was made on the first defendant would never have a chance to remove to federal court despite the fact that Section 1446(a) would otherwise allow it. The Sixth, Eighth, Ninth and Eleventh Circuits have found this result unjust and not warranted by a fair reading of the statute. So each of these circuits have held that EACH defendant gets its own thirty-day window to file a Notice of Removal, thus allowing later-served defendants the same opportunity given to the first-served defendant.

So, where does the Third Circuit now stand? Firmly with the majority: “We conclude that the later-served rule represents a better reading of the language of § 1446(b) and results in more equitable treatment to later-served defendants.”

Now for a bit of commentary — because the basics of this case are, one has to admit, rather dry. One of the arguments that has swayed those courts, including the Third Circuit, to follow the later-served rule is the argument that an earlier-served defendant who forwent the opportunity to file its own Notice of Removal is not actually getting an impermissible second chance, since consenting to removal is different than initiating it. The courts explain this by pointing out that the earlier-served defendant may not have removed in the first instance due to “lack of resources, trusting a lawyer’s advice or inertia.” Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011). However, in my opinion, none of those appear to be good enough excuses or distinquishing factors between consenting and removing. The actual cost, including attorneys’ fees, to file a Notice of Removal is minimal, and I have yet to see any court excuse a party’s failure to act because it was lazy, or trusted its lawyer’s advice on discretionary matters such as court and venue selection. I’ll be looking to see what the Third Circuit does next time an attorney claims a filing deadline is missed because he or she just didn’t get around to it in time.

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