Litigation

Federal Court Removal: Ninth Circuit Adopts "Later-Served" Rule

By Bruce Nye

Companies who find themselves on the right side of the "v" in California product liability litigation like federal court.  Why?  Let's count the ways:  (a)  In Federal Court, the 
admissibility of expert testimony is governed by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).  On the other hand, the rule in California is that an expert is somebody who went to college and has a briefcase;  (b)  In California state court, a verdict requires nine out of twelve jurors, while in Federal Court, the verdict must be unanimous, including on damages (although we typically only get six to eight jurors);  (c) in Federal Court, pretrial orders require highly structured discovery and early disclosure of expert information, while in State Court, experts are disclosed and deposed in a mad scramble right before trial;  (d)  in Federal Court, a defendant can actually get summary judgment granted once in awhile in a meritless case, while in California Superior Courts, the summary judgment law is somewhat akin to the tax code and the culture is to deny; and (e)  while there really are plenty of good California State judges, in Federal Court the odds increase that you'll get a judge who is willing to rule and who believes in making both sides follow the law.

So here's a chronic problem.  28 U.S.C.§ 1448 says that removal to Federal Court must occur within thirty days "after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . ." 

Consider this scenario:  Plaintiff files a product liability case in California Superior Court and sues five defendants.  The first defendant sends the summons and complaint to its insurer, who sends the case to defense counsel, who doesn't think about removal jurisdicition.  Counsel for Defendant 1 lets the thirty days go by, after which Plaintiff serves Defendants 2 through 5.  Assuming 2 through 5 can get Defendant 1's consent, can they remove within 30 days of when they were served?  There is a disagreement in the Federal Courts.  Compare:  Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986) (thirty days starts running as to everybody with service on first defendant) and Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999) (each defendant gets 30 days from when it was served). 

Obviously, defendants who like Federal Court like the Brierly rule  (the "later served" rule), not the Brown decision (the "first served" rule).  And now, the Ninth Circuit has decided that the Later Served rule is the order of the day in California, Nevada, Alaska, Hawaii, and the other Ninth Circuit states.  Per Judge Kozinski: 

The removal statute speaks of ?the defendant??not ?first defendant? or ?initial defendant??and its most straightforward meaning is that each defendant has
thirty days to remove after being brought into the case.

Destfino v. Reiswig, ___ F.3d ___ , 2011 WL 182241 (9th.Cir. 2011).  So in these parts, every defendant in a removeable case gets thirty days.

Full post as published by CalBizLit on January 25, 2011 (boomark / email).