Rehearing en banc granted, May 6, 2010
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHIRLEY M. BARBOUR; HARRY M.
BARKER; ANTHONY BURTON;
WILLIAM J. CLINE; BARBARA
FAULKNER; RAYMOND N. FLECK, JR.;
ARTHUR HAMILTON, II; DANIEL L.
HAMM; TROY L. HARRIS; GARY
LANDAU; VINCENT MARRA; PEGGY
A. MURPHY; RICHARD DOUGLAS
PERMENTER; PATRICIA PIERSON;
JEFFREY N. ROBERTS; ANNIE SMITH
RODGERS; REESS H. SCOTT; JOYCE
SEE; RONEY SMITH; FRED M. No. 08-1740
STEWART; DANIEL LEE TICHNELL;
ROBERT THOMAS; CHARLES F.
WADKINS,
Plaintiffs-Appellants,
v.
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA; LOCAL NO.
1183 OF INTERNATIONAL UNION,
2 BARBOUR v. INTERNATIONAL UNION
UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA;
LOCAL NO. 1212 OF INTERNATIONAL
UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:08-cv-01076-AMD)
Argued: September 22, 2009
Decided: February 4, 2010
Before AGEE, Circuit Judge, HAMILTON, Senior Circuit
Judge, and Margaret B. SEYMOUR, United States District
Judge for the District of South Carolina,
sitting by designation.
Affirmed in part; vacated and remanded with instructions by
published opinion. Judge Agee wrote the opinion, in which
Judge Seymour joined. Senior Judge Hamilton wrote a sepa-
rate opinion concurring in the judgment in part and dissenting
in part.
COUNSEL
ARGUED: Thomas C. Costello, WEST & COSTELLO,
LLC, Baltimore, Maryland, for Appellants. Ava Barbour,
BARBOUR v. INTERNATIONAL UNION 3
INTERNATIONAL UNION, UAW, Detroit, Michigan, for
Appellees. ON BRIEF: John H. West, III, WEST & COS-
TELLO, LLC, Baltimore, Maryland, for Appellants. Wendy
L. Kahn, Jeffrey W. Burritt, ZWERDLING, PAUL, KAHN &
WOLLY, PC, Washington, D.C., for Appellees.
OPINION
AGEE, Circuit Judge:
In this appeal we first consider whether removal of the case
from state to federal court was timely. Holding that the notice
of removal was timely filed, we then determine whether the
district court possessed subject matter jurisdiction over the
case based on the doctrine of complete preemption. For the
reasons that follow, we hold that the district court was without
subject matter jurisdiction.
I. Factual Background
Because this case was decided on a motion to dismiss pur-
suant to Rule 12(b)(6) of the Federal Rules of Civil Proce-
dure, we accept the facts alleged in the complaint as true and
view "them in the light most favorable to the plaintiff[s]." Am.
Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212,
228-29 (4th Cir. 2004). The facts, as pled, reflect the follow-
ing.
Shirley Barbour and certain fellow retirees ("the Retirees")
at a Chrysler automobile assembly plant in Newark, Delaware
filed suit in the Circuit Court of Cecil County, Maryland
against (1) International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
("International Union"), (2) Local 1183 of the International
Union ("Local 1183"), and (3) Local 1212 of the International
Union ("Local 1212") (the defendants are collectively "the
4 BARBOUR v. INTERNATIONAL UNION
UAW") alleging that the UAW provided them with false
information regarding their eligibility to receive retirement
incentive packages in 2007.
According to the Retirees’ complaint, near the end of 2006
they each had accrued the requisite years of service to retire
from Chrysler with full benefits. At about that same time, the
Retirees became aware that Chrysler might reduce its work-
force and that such workforce reductions might occur at the
Newark plant. Knowing that workforce reductions often
include financial incentives to retirement-eligible employees,
the Retirees sought information from the UAW’s benefit rep-
resentatives concerning their potential eligibility for any
financial incentives that might materialize. The Retirees were
concerned that if they retired prematurely, they might fail to
qualify for workforce reduction financial incentives to which
they would otherwise be entitled. Moreover, it was the Retir-
ees’ understanding that Chrysler could not offer any such
incentives without the approval of the UAW.
The UAW told the Retirees and other employees who
inquired that they should delay their retirement from Chrysler
until January 31, 2007, which would ensure their eligibility
for any workforce reduction financial incentive offered
throughout the 2007 calendar year. Relying on this advice, the
Retirees submitted the applications necessary to effectuate
their respective retirements as of January 31, 2007.
Between the submission of the retirement paperwork and
the effective date of their retirement, however, many of the
Retirees heard that the offering of a workforce reduction
financial incentive package was imminent. In response, some
of the Retirees again expressed concern to the UAW that their
retirements should be postponed. In response to these inqui-
ries, the UAW’s officers and benefits representatives
informed the Retirees that "no retirement package was ‘com-
ing down,’ and that any retirement package offered in 2007
would be retroactive to January 31, 2007 and include all
BARBOUR v. INTERNATIONAL UNION 5
[employees] who retired on or after that date . . . ." J.A. 29.
Relying on this advice, the Retirees retired on January 31,
2007. In mid-February Chrysler announced that financial
incentives of approximately $70,000 per person would be
offered to employees at the Newark plant but would only
apply to persons employed as of the date of the announce-
ment, not retroactively. The Retirees were therefore ineligible
to receive the financial incentives.
On April 28, 2008 the Retirees filed their complaint in the
Maryland state court asserting that "[a]s a result of their union
membership, the UAW owed [them] duties of loyalty, fidelity
and full disclosure of all material facts." J.A. 26. Alleging a
breach of these fiduciary duties, the Retirees pled a cause of
action for negligent misrepresentation based on the UAW’s
assertions to them that no financial incentives were being
negotiated between the union and Chrysler and that any such
incentive would be retroactively available to employees retir-
ing on or after January 31, 2007. The Retirees also asserted
a claim for negligence based on a breach of "duties of care,
fidelity and loyalty" because of (1) the UAW’s failure to
advise them of the negotiations with Chrysler, (2) the UAW’s
failure to warn them that their retirement before the financial
incentives were announced would preclude them from receiv-
ing the incentives, and (3) the International Union’s failure to
keep the local unions apprised of the status of its negotiations
with Chrysler. J.A 55-56.1
The Retirees served the International Union with the com-
plaint on March 20, 2008. Local 1183 was served with pro-
cess on March 29, 2008. On April 28, 2009, more than thirty
days after service on the International Union, but within thirty
days of service on Local 1183, but before Local 1212 was
served, all three defendants filed a joint notice of removal
1
Chrysler is not a defendant in this case and the Retirees make no claim
against it nor do they allege that they ever communicated with Chrysler
in any way as to the workforce reduction financial incentive package.
6 BARBOUR v. INTERNATIONAL UNION
pursuant to 28 U.S.C. §§ 1331, 1337 and 1441 even though
Local 1212 had not been served.
The UAW pled in the notice of removal that "the duty of
care [the Retirees] maintain[ ] [they are] owed from Defen-
dant[s] is the duty of fair representation . . . which arises from
UAW’s status from its exclusive bargaining authority pursu-
ant to section 9(a) of the National Labor Relations Act, 29
U.S.C. § 159." J.A. 13. The UAW then filed a motion to dis-
miss under Rule 12(b)(6) based on the assertion that the Retir-
ees’ claims were barred by the applicable statute of
limitations under federal labor law. See § 10(b) of the NLRA,
29 U.S.C. § 160(b).
The Retirees filed a motion to remand the case to state
court, arguing that (1) the UAW’s notice of removal was not
timely filed and (2) there was no basis for federal jurisdiction.
On June 12, 2008, the district court issued a memorandum
and order denying the Retirees’ motion to remand and grant-
ing the UAW’s motion to dismiss. The district court con-
cluded that the Retirees had "artfully" attempted to "‘plead
around’ the pre-emptive force of federal labor law" and that
their state law claims were "completely pre-empted by the
federal duty of fair representation" in section 9(a) of the
NLRA. J.A. 127. The district court found that "[t]he breach
of that duty, if any, is a matter of federal, not state, law." J.A.
127. Concurrent with its denial of the Retirees’ motion to
remand the district court granted the UAW’s motion to dis-
miss based upon the asserted six-month statute of limitations.2
The Retirees, having pursued their claims solely in state court,
were thus time-barred from filing a claim in federal court.
2
The parties disagree as to the applicability of a six-month statute of
limitations to the Retirees’ claims and the Retirees have separately
assigned error to the district court’s dismissal of the case on that basis.
Because of our decision regarding the district court’s subject matter juris-
diction, it is unnecessary to address any question regarding the applicable
statute of limitations.
BARBOUR v. INTERNATIONAL UNION 7
On the following day, the Retirees moved the district court
for reconsideration of its ruling and sought explanation of its
determination that the UAW’s notice of removal had been
timely filed. The district court entered an order denying the
Retirees’ motion for reconsideration and stating the court’s
belief that this case presents "an excellent opportunity for the
Fourth Circuit to clarify whether the ‘first-filed’ ‘dictum’ in
McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924
(4th Cir. 1992), means what it actually seems to say." J.A.
132.
The Retirees have timely appealed and we have jurisdiction
pursuant to 28 U.S.C. § 1291. For the reasons set forth below,
we affirm the judgment of the district court in part, reverse in
part and remand the case with instructions to the district court.
II. Timeliness of the Notice of Removal
The threshold issue we consider is whether removal of the
case to federal court was timely. If the notice was untimely,
we need not consider the UAW’s claim of complete preemp-
tion, as an untimely notice of removal would require that the
case be remanded to the Maryland state court because the fed-
eral court would lack jurisdiction over the claims or the par-
ties. If, on the other hand, the UAW’s notice of removal was
timely, only then must we consider whether the district court
properly determined that subject matter jurisdiction otherwise
existed over the Retirees’ claims.
"For questions concerning removal to federal court, our
standard of review is de novo." Payne ex rel. Estate of
Calzada v. Brake, 439 F.3d 198, 203 (4th Cir. 2006). The stat-
utory basis for removal jurisdiction is found in 28 U.S.C.
§ 1446(b), which provides:
The notice of removal of a civil action or proceeding
shall be filed within thirty days after the receipt by
the defendant, through service or otherwise, of a
8 BARBOUR v. INTERNATIONAL UNION
copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based,
or within thirty days after the service of summons
upon the defendant if such initial pleading has then
been filed in court and is not required to be served
on the defendant, whichever period is shorter.
(Emphasis added.) The statute speaks only in terms of a sin-
gular defendant and does not explicitly address the timeliness
of removal in cases involving multiple defendants, as in the
case at bar. See Brierly v. Alusuisse Flexible Packaging, Inc.,
184 F.3d 527, 532 (6th Cir. 1999) ("The statutory language
itself contemplates only one defendant and thus does not
answer the question of how to calculate the timing for
removal in the event that multiple defendants are served at
different times, one or more of them outside the original 30-
day period."). "All pertinent sections of the removal statute
contemplate cases with more than one defendant, except for
§ 1446(b). This conspicuous omission has created the most
serious statutory construction problem when removal is
sought in multidefendant actions." Howard B. Stravitz,
Recocking the Removal Trigger, 53 S.C. L. REV. 185, 200
(2002). As a result, our sister circuits have differed in their
application of the statute to cases involving multiple defen-
dants.
The Fifth Circuit was the first circuit court of appeals to
address the issue in Brown v. Demco, Inc., 792 F.2d 478 (5th
Cir. 1986), where it stated that "[t]he general rule . . . is that
‘[i]f the first served 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." Id. at 481.
Two years later, in Getty Oil Corp. v. Insurance Co. of North
America, 841 F.2d 1254 (5th Cir. 1988), the Fifth Circuit
expressly adopted what has become known as the "first-
served defendant" rule.
BARBOUR v. INTERNATIONAL UNION 9
In cases involving multiple defendants, the thirty-
day period begins to run as soon as the first defen-
dant is served (provided the case is then removable).
It follows that since all served defendants must join
in the petition, and since the petition must be submit-
ted within thirty days of service on the first defen-
dant, all served defendants must join in the petition
no later than thirty days from the day on which the
first defendant was served.
Id. at 1262-63 (internal citations omitted).
However, since Getty Oil was decided, three other circuits
have rejected this rule in favor of what is generally referred
to as the "last-served defendant" rule. See, Bailey v. Janssen
Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. 2008); Marano
Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753 (8th Cir.
2001); Brierly, 184 F.3d at 533. The last-served defendant
rule "permits each defendant, upon formal service of process,
thirty days to file a notice of removal pursuant to § 1446(b)."
Bailey, 536 F.3d at 1209. "Earlier-served defendants may
choose to join in a later-served defendant’s motion or not,
therefore preserving the rule that a notice of removal must
have the unanimous consent of the defendants." Id. at 1207.
After Getty Oil but before the decisions in Bailey, Marano
and Brierly, this Court touched upon the issue with the fol-
lowing footnote in the McKinney decision:
[W]here B is served more than 30 days after A is
served, two timing issues can arise, and the law is
settled as to each. First, if A petitions for removal
within 30 days, the case may be removed, and B can
either join in the petition or move for remand. See 28
U.S.C. § 1448. Second, if A does not petition for
removal within 30 days, the case may not be
removed.
10 BARBOUR v. INTERNATIONAL UNION
955 F.2d at 926 n.3.
Courts have characterized the language from the last sen-
tence in Footnote 3 of McKinney as a "middle ground" posi-
tion
somewhere in between the first-served and last-
served-defendant rules. In McKinney, the court held
that each defendant has thirty days from the date on
which it is served to join in "an otherwise valid
removal petition." Thus, if the original notice of
removal filed by an earlier-served defendant is
defective in some way, the later-served defendant
may not remove, even if it attempts to do so within
thirty days of being served.
Fitzgerald v. Bestway Servs., Inc., 284 F. Supp. 2d 1311,
1315-316 (N.D. Ala. 2003) (internal citations omitted); see
also Bailey, 536 F.3d at 1206 n.5 ("The Northern District of
Alabama was probably correct to note that McKinney
endorsed, essentially, a middle ground between the first-
served and last-served defendant rules. . . . ")
Many, if not most, of the district courts in this circuit that
have applied McKinney have considered the "rule" dicta. See,
e.g., Guyon v. Basso, 403 F. Supp. 2d 502, 508 (E.D. Va.
2005) (acknowledging that defendants "urge the court to . . .
disregard McKinney dictum that a first-served defendant must
file a removal notice within thirty days from the date of ser-
vice . . . ."); Ratliff v. Workman, 274 F. Supp. 2d 783, 787
(S.D. W. Va. 2003) ("statement [in Footnote 3] was unneces-
sary to the Fourth Circuit’s actual decision, however, and is
therefore considered dictum"); Superior Painting & Contract-
ing Co. v. Walton Tech., Inc., 207 F. Supp. 2d 391, 393 n.4
(D. Md. 2002) (noting that even though "the court’s pro-
nouncements on when first-served defendants must file
notices of removal has been termed dicta," district courts
within the circuit should still consider dictum presumptively
BARBOUR v. INTERNATIONAL UNION 11
correct). Judge Shedd, a member of the panel in McKinney,
wrote in Branch v. Coca-Cola Bottling Co., 83 F. Supp. 2d
631, 634 (D.S.C. 2000), that McKinney was not "controlling
precedent" "because [the relevant language in Footnote 3] was
unnecessary to the Fourth Circuit’s actual decision [and] must
be considered as being dictum."3
Moreover, after the Supreme Court’s decision in Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344
(1999), the district court in Ratliff adopted the last-served
defendant rule, holding
that each defendant has thirty days to remove start-
ing from the time service of process is effected on
that defendant. This requires that any previously-
served defendant be allowed to consent to join in
removal even after the expiration of their own thirty-
day time limitation. Once the thirty-day time period
for the first-served defendants has expired, however,
the first-served defendants are no longer allowed to
initiate a petition for removal.
274 F. Supp. 2d at 791.
The Ratliff court, noting that none of the prior decisions by
other district courts in this circuit had addressed the effect of
Murphy Brothers on removal in actions with multiple defen-
dants, determined Footnote 3 was not controlling because
"[t]his statement was unnecessary to the Fourth Circuit’s
actual decision . . . and is therefore considered dictum." 274
F. Supp. 2d at 787. But see Guyon v. Basso, 403 F. Supp. 2d
502, 508 n.10 (E.D. Va. 2005) (following McKinney and find-
ing that Murphy Brothers did not address the issue presented);
Ford v. Baltimore City Dep’t of Soc. Servs., No. CCB-06-
2134, 2006 WL 3324896, at *2 n.2 (D. Md. Nov. 13, 2006)
3
At the time McKinney was decided, Judge Shedd was a District Court
Judge and sat by designation.
12 BARBOUR v. INTERNATIONAL UNION
(unpublished) (district court unpersuaded that the Supreme
Court’s decision in Murphy Brothers necessitates rejection of
McKinney).
The issue having been properly preserved below, and in
consideration of the split among the district courts in this cir-
cuit, we accept the district court’s invitation in this case to
clarify the law in this circuit regarding removal under
§ 1446(b) in cases with multiple defendants.
"[A] panel of this court cannot overrule, explicitly or
implicitly, the precedent set by a prior panel of this court.
Only the Supreme Court or this court sitting en banc can do
that." Mentavlos v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir.
2001). Therefore, to reject the so-called "McKinney rule," we
must conclude that either (1) McKinney is non-binding prece-
dent, or (2) subsequent holdings of the Supreme Court coun-
sel a different result. We find that, because it was dictum, the
"rule" expressed in McKinney is not binding on this panel and
that intervening case law from the Supreme Court, while not
controlling, nonetheless "counsels" a different result. See
United States v. Pasquantino, 336 F.3d 321, 329 (4th Cir.
2003) (en banc) ("The first significant problem is that the
statements [the defendants] rely upon . . . are pure and simple
dicta, and, therefore, cannot serve as a source of binding
authority in American jurisprudence."); see, e.g., Alexander v.
Sandoval, 532 U.S. 275, 282 (2001) ("[T]his Court is bound
by holdings, not language."); Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 379 (1994) ("It is to the holdings of our
cases, rather than their dicta, that we must attend . . . .");
Estate of Love v. Comm’r, 923 F.2d 335, 337 (4th Cir. 1991)
(ruling on issue despite dicta in prior case); Branch, 83 F.
Supp. 2d at 634 n.12 ("Dictum includes ‘any statement of the
law enunciated by the court merely by way of illustration,
argument, analogy, or suggestion.’") (quoting Black’s Law
Dictionary 454 (6th ed. 1990)). Even the dissent acknowl-
edges that "the inclusion of Footnote 3 in the McKinney deci-
BARBOUR v. INTERNATIONAL UNION 13
sion arguably was not necessary to the decision . . . ." Infra
at 38.
We conclude, as have many other courts to consider the
issue, that any language in McKinney requiring a first-served
defendant to have filed a petition for removal within thirty
days of being served as a bar to all later-served defendants
constitutes non-binding dicta.4 See cases cited supra at 10-11;
Bailey, 536 F.3d at 1206 n.5 ("The Fourth Circuit’s decision
in [McKinney] endorsed the first-served rule, but in dicta.");
Bonadeo v. Lujan, No. CIV-08-0812, 2009 WL 1324119, at
*6 (D.N.M. Apr. 30, 2009) (noting that McKinney "apparently
endors[ed] the [last-served defendant] rule in dicta"). While
McKinney involved multiple defendants served at different
times, unlike the case at bar, the first-served defendants in
McKinney did timely file a notice of removal within 30 days
of the service of process on them. The issue in McKinney was
whether the later-served defendants could join in the existing
removal petition (to achieve the required unanimity) more
than 30 days after the date of service on the first defendants
but within 30 days of service upon the later-served defendants.5
4
It is worth noting that Footnote 3 in McKinney is dicta citing dicta that
is no longer good law. The case cited by the court as authority in Footnote
3, Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F. Supp. 351 (E.D.
Mo. 1981), was overruled by the Eighth Circuit in Marano. Moreover, the
language to which the McKinney Court cited in Quick Erectors was itself
dicta. See Smith v. Health Ctr. of Lake City, Inc., 252 F. Supp. 2d 1336,
1344 (M.D. Fla. 2003) (stating that in Marano "the Eighth Circuit adopted
a rule contrary to the dicta in Quick Erectors").
5
We respectfully disagree with our dissenting colleague who contends
that "the flaw" in our reasoning is our assertion "that the McKinney court
did not address the question of initial removal" because, in fact, it did so
"when it agreed . . . that the first-served defendant must petition for
removal with[in] thirty days of being served." Infra at 42. The fact that the
court commented upon initial removal does not negate the fact that doing
so was unnecessary dicta under the particular facts of that case and not
necessary for the Court’s holding on later-served defendants.
14 BARBOUR v. INTERNATIONAL UNION
By contrast, in the case at bar, the first-served defendant,
the International Union, did not file a notice of removal
within 30 days of being served with process. Thus, the issue
of initial removal by a defendant other than the first-served
defendant was simply not before the court in McKinney.
Therefore, the McKinney court’s expression in Footnote 3
regarding the application of § 1446 in the circumstance where
the first-served defendant had not timely filed a notice of
removal was gratuitous and unrelated to the issue then before
the court.6 Footnote 3 is classic judicial dictum: "an opinion
by a court . . . that is not essential to the decision," Black’s
Law Dictionary 485 (8th ed. 2004) and therefore not binding
on later panels in this circuit. Pasquantino, 336 F.3d at 329
("dicta . . . cannot serve as a source of binding authority in
American jurisprudence"); see also U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 463, n. 11
(1993) (commenting on "the need to distinguish an opinion’s
holding from its dicta").
The dissent contends that the McKinney panel’s "agreement
with the Getty Oil court’s first holding was critical to the deci-
sion, in that it closed the door to a reading of § 1446(b) that
would have allowed later-served defendants to petition for
removal within thirty days of being served when the first-
served defendant had not." Infra at 42. Again, we respectfully
disagree. As with the dicta in either the body of McKinney or
in Footnote 3, the panel’s reliance on Getty Oil was not criti-
cal to the issue of whether later-served defendants had thirty
days to join in the first-served defendant’s already timely filed
petition for removal.
6
Similarly, the phrase from the body of the McKinney opinion noted by
the dissent — "while the first served defendant clearly must petition for
removal within thirty days" — is a repeat of the second sentence of Foot-
note 3 and was not necessary to the basis for the McKinney opinion, as
noted earlier. The first-served defendant had timely filed in McKinney and
any speculation about what might happen if that defendant had not filed
was not germane to the issue before the Court in McKinney regarding
later-served defendants.
BARBOUR v. INTERNATIONAL UNION 15
In addition to our conclusion that Footnote 3 is non-binding
dicta, we, along with the circuit courts of appeal in Bailey and
Marano and the district court in Ratliff, also find that the
Supreme Court’s analysis in Murphy Brothers undermines the
validity of the last sentence of Footnote 3. In Murphy Broth-
ers the Supreme Court was asked to determine "whether the
named defendant must be officially summoned to appear in
the action before the time to remove [under 28 U.S.C. §
1446(b)] begins to run." Murphy Brothers, 526 U.S. at 347.
The Court held "that a named defendant’s time to remove is
triggered by simultaneous service of the summons and com-
plaint, or receipt of the complaint, ‘through service or other-
wise,’ after and apart from service of the summons, but not
by mere receipt of the complaint unattended by any formal
service." Id. at 347-48.
In Marano, the Eighth Circuit explained that, although not
directly on point, "the legal landscape in this area has been
clarified, and perhaps the definitive answer portended, by the
Supreme Court’s decision in [Murphy Brothers]." 254 F.3d at
756. The court concluded
that, if faced with the issue before us today, the
[Supreme] Court would allow each defendant thirty
days after receiving service within which to file a
notice of removal, regardless of when—or
if—previously served defendants had filed such
notices. See 16 James Wm. Moore et al., Moore’s
Federal Practice § 107.30[3][a][i], at 107-163 (3d ed.
2000) ("[I]t is likely that the Court may decide that
the later served defendants may not have their
removal right compromised before they are served,
and that they ought to have the opportunity to per-
suade the earlier served defendants to join the notice
of removal. Thus, the fairness approach may well,
and should, supercede [sic] the unanimity rule.").
Id. at 756-57 (footnote omitted); see also Shadie v. Aventis
Pasteur, Inc., 254 F. Supp. 2d 509, 515 (M.D. Pa. 2003)
16 BARBOUR v. INTERNATIONAL UNION
("This ‘later-served defendant’ rule appears to be a necessary
corollary to the Supreme Court’s recent decision in Murphy
Brothers. . . . "); Orlick v. J.D. Carton & Son, Inc., 144 F.
Supp. 2d 337, 343 (D.N.J. 2001) ("In light of the Supreme
Court’s holding in Murphy Brothers, however, it is counter-
intuitive to maintain a ‘first-served defendant’ rule when the
Supreme Court would not — consistent with Murphy Broth-
ers — begin to run a later-served defendant’s time to seek
removal until that defendant received proper service of pro-
cess.")
Agreeing with the Eighth Circuit’s reasoning, the Eleventh
Circuit concluded:
Perhaps prior to Murphy Brothers and its holding
that notice is insufficient to trigger § 1446(b)’s time
window, the issue of which rule to endorse would be
a closer call than it is now. The tide of recent deci-
sions by the courts of appeals . . . recognize that
equity favors permitting each defendant thirty days
in which to seek removal under the statute. As the
Eighth Circuit observed, the last-served defendant
rule is consistent with Murphy Brothers . . . [which]
signals a slight departure from the weight courts
might ordinarily put on strict construction of the
removal statute. It appears to us to be contrary to the
Supreme Court’s holding in Murphy Brothers, as
well as the interests of equity, to permit a first-served
defendant to, in effect, bind later-served defendants
to a state court forum when those defendants could
have sought removal had they been more promptly
served by the plaintiff.
Bailey, 536 F.3d at 1208 (footnote omitted).
Like the Eighth and Eleventh Circuits, we agree that Mur-
phy Brothers, though not dispositive of the issue, lends credi-
ble and persuasive support to the propriety of the last-served
BARBOUR v. INTERNATIONAL UNION 17
defendant rule. The facts of this case illustrate the conflict
between Murphy Brothers and McKinney. Here, the Interna-
tional Union was served on March 20, 2008, and Local 1183
was served nine days later on March 29, 2008. Despite the
fact that Local 1212 was never served, it nonetheless joined
in the notice of removal filed on April 28, 2008 (39 days after
service on the International Union and 30 days after service
on Local 1183). "Contrary to Murphy Brothers, the first-
served defendant rule would [have] obligate[d Local 1212] to
seek removal prior to [its] receipt of formal process bringing
[it] under the court’s jurisdiction." See id. at 1208. Under
either the pure first-served defendant rule or the McKinney
rule, Local 1212’s right of removal would have been waived
by the International Union’s failure to file a notice of removal
within 30 days of being served even though it was not yet
within the court’s jurisdiction. Such prejudice to Local 1212’s
rights would violate the spirit, if not the letter, of the "bedrock
principle" that "a defendant is not obliged to engage in litiga-
tion unless notified of the action, and brought under a court’s
authority, by formal process." Murphy Brothers, 526 U.S. at
347.
The "McKinney rule" also conditions the right to removal
for subsequently served defendants upon actions taken by pre-
viously served defendants, who must have filed a notice of
removal within 30 days of having been served. See Marano,
254 F.3d at 755 n.4 (observing that the McKinney rule is
"fully in keeping with the first-served rule: it still requires that
the first-served defendant file a notice of removal within
thirty days and precludes a later-served defendant from insti-
gating removal if more than thirty days have passed since the
first defendant was served"). As we said in McKinney, refer-
ring to the first-served defendant rule, "[w]e do not think that
Congress, in providing for removal to federal court, intended
to allow inequitable results." 955 F.2d at 927. The Sixth,
Eighth and Eleventh Circuits each discussed this inequity in
adopting the last-served defendant rule. See Bailey, 536 F.3d
at 1206 ("[W]e are convinced that both common sense and
18 BARBOUR v. INTERNATIONAL UNION
considerations of equity favor the last-served defendant
rule."); Marano, 254 F.3d at 755 ("The [Fifth Circuit in Getty
Oil] did not consider, however, the ‘hardships’ to a defendant
when the first-served defendant for whatever reason does not
file a notice of removal within thirty days of service.")
(emphasis omitted); Brierly, 184 F.3d at 533 ("[A]s a matter
of fairness to later-served defendants, we hold that a later-
served defendant has 30 days from the date of service to
remove a case to federal district court, with the consent of the
remaining defendants."). This principle would apply as well
to Local 1183, if the failure of another party, the International
Union, could be construed as waiving Local 1183’s right to
removal.
One commentator has explained the inequity thrust upon
later-served defendants as follows:
[N]either § 1446(a) nor § 1446(b) contemplates a
scenario in which defendants are served as much as
thirty days apart, or in which an unsophisticated
defendant is served first and a more sophisticated
defendant is served later. In these instances, the
second-served defendant should be able to timely
remove and persuade the first-served defendant to
join the removal. Otherwise, the first-served defen-
dant abridges the second-served defendant’s proce-
dural right to a federal forum. If the first-served
defendant makes a conscious choice not to remove,
the second-served defendant has to accept that
choice. But the second-served defendant should have
a reasonable opportunity to consult with the first-
served defendant regarding possible removal. Con-
sultation is practically impossible if service on the
second defendant occurs near the end of or after the
first defendant’s thirty-day removal period has
expired.
Stravitz, supra, at 202-203.
BARBOUR v. INTERNATIONAL UNION 19
In dissent our distinguished colleague finds "nothing ineq-
uitable about interpreting § 1446(b) in a manner that applies
its thirty-day timeframe to all defendants where removal is to
be achieved." Infra at 46. We respectfully disagree. In Mur-
phy Brothers the Supreme Court made clear that "[i]n the
absence of service of process (or waiver of service by the
defendant), a court ordinarily may not exercise power over a
party the complaint names as defendant. 526 U.S. at 350. It
would be an odd and seemingly unjust result for a federal
court’s (removal) jurisdiction to rest upon a first-served co-
defendant’s deliberate or careless inaction. Despite the
Supreme Court’s admonition that "one becomes a party offi-
cially, and is required to take action in that capacity, only
upon service of a summons . . ." id. (emphasis added), the
practical effect of adhering to the dissent’s view would
require an unserved defendant, who may or may not be aware
of the lawsuit, to urge a first-served defendant with whom he
may have no relationship, to file a petition for removal. Mur-
phy Brothers does not counsel such a result.7
The dissent criticizes the last-served defendant rule because
it only requires the last-served defendant "to act in a timely
manner," infra at 46, whereas the McKinney rule seeks to
"give effect to all the language in § 1446(b)" by requiring
"every defendant to act within thirty days of being served." Id.
(emphasis omitted). But the McKinney rule only requires
every defendant to act if every preceding defendant acted; if
the first-served defendant was dilatory, the remaining defen-
dants cannot act at all.
7
The dissent argues that the McKinney Rule "prevents the first-served
defendant from benefitting from his inaction" by requiring him to act or
else "forfeit[ ] his right to remove the case or to consent to the removal."
Infra at 45. The fallacy in this view is that it is all defendants, not just the
first-served defendant, who is penalized by the first-served defendant’s
inaction because it is the not-yet-served or later-served defendants’ rights
that are forfeited before they have been brought within the federal court’s
jurisdiction.
20 BARBOUR v. INTERNATIONAL UNION
The dissent also finds the McKinney Rule "less intrusive
than the Last-Served Defendant Rule on the principle that we
construe removal statutes strictly." Infra at 45. While it is axi-
omatic that removal statutes should be strictly construed, the
crux of our disagreement with the dissent derives from the
inherent difficulties in attempting to strictly construe a statute
that does not address the factual circumstances involved (mul-
tiple defendants). Each of the various interpretations pro-
pounded (e.g., first-served defendant rule, last-served
defendant rule, and McKinney rule) has some logical basis
and all can be said to require the addition of words to the stat-
ute. Nonetheless, we find the reasoning of the majority of our
sister circuits most closely matches Congress’ intent in adopt-
ing § 1446, an admittedly ambiguous statute.
In conclusion, we believe the so-called "McKinney rule" is
based on non-binding dicta and the Supreme Court’s opinion
in Murphy Brothers counsels a different result. We therefore
join the Sixth, Eighth and Eleventh Circuits in adopting the
last-served defendant rule and hold that in cases involving
multiple defendants, each defendant, once served with formal
process, has thirty days to file a notice of removal pursuant to
28 U.S.C. § 1446(b) in which earlier-served defendants may
join regardless of whether they have previously filed a notice
of removal.8
Accordingly, we hold that the joint notice of removal was
timely filed in this case and affirm the judgment of the district
court in that respect.
8
In our view, this rule does not work an injustice on a plaintiff who, by
serving the defendants as contemporaneously as possible, can minimize
any significant disruption either to their case or proceedings in the state
court. Thus, while any such burden is minimal, all defendants have their
opportunity to remove the case protected. See Stravitz, supra, at 210
("[T]he only rule that balances plaintiff-oriented policies of unanimity and
timelessness with a defendant’s procedural right to remove is the true last-
served defendant rule . . . .").
BARBOUR v. INTERNATIONAL UNION 21
III. Complete Preemption
A.
Having determined that the UAW’s removal notice was
timely filed, we next address whether the district court cor-
rectly determined that the Retirees’ claims were completely
preempted by federal law. As we explain below, application
of the complete preemption doctrine is the only basis by
which the UAW could establish jurisdiction in the district
court over the Retirees’ claims upon removal. If the district
court erred in that conclusion, and the Retirees’ claims were
not completely preempted, then the district court lacked sub-
ject matter jurisdiction and had no authority to rule on the
Rule 12(b)(6) motion. For the following reasons we find that
the district court lacked subject matter jurisdiction because
complete preemption is not present in this case.
Generally, removal from state court is available only in
three circumstances: (1) "if the parties are diverse and meet
the statutory requirements for diversity jurisdiction" as set
forth in 28 U.S.C. §§ 1332, 1441(b); (2) "if the face of the
complaint raises a federal question;" or (3) "if the subject mat-
ter of a putative state law claim has been totally subsumed by
federal law—such that state law cannot even treat on the sub-
ject matter . . . ." Lontz v. Tharp, 413 F.3d 435, 439-40 (4th
Cir. 2005). The UAW did not attempt to remove the case to
federal court on the basis of diversity jurisdiction and has not
argued that a federal claim is presented on the face of the
complaint. Therefore, we only consider, as the UAW has
argued and the district court determined, whether the doctrine
of complete preemption provides a basis for federal jurisdic-
tion.
We review questions of subject matter jurisdiction
de novo, "including those relating to the propriety of
removal." Mayes v. Rapoport, 198 F.3d 457, 460
(4th Cir. 1999). The burden of demonstrating juris-
22 BARBOUR v. INTERNATIONAL UNION
diction resides with "the party seeking removal."
Mulcahey v. Columbia Organic Chems. Co., 29 F.3d
148, 151 (4th Cir. 1994). We are obliged to construe
removal jurisdiction strictly because of the "signifi-
cant federalism concerns" implicated. Id. Therefore,
"[i]f federal jurisdiction is doubtful, a remand [to
state court] is necessary." Id.
Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir.
2004) (en banc) (alterations in original); Payne, 439 F.3d at
203 ("For questions concerning removal to federal court, our
standard of review is de novo."). "Under what has become
known as the well-pleaded complaint rule, § 1331 federal
question jurisdiction is limited to actions in which the plain-
tiff’s well-pleaded complaint raises an issue of federal law
. . . ." In re Blackwater Sec. Consulting, LLC, 460 F.3d 576,
584 (4th Cir. 2006). "The rule makes the plaintiff the master
of the claim; he or she may avoid federal jurisdiction by
exclusive reliance on state law." Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987); see also Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 6 (2003) ("As a general rule, absent
diversity jurisdiction, a case will not be removable if the
Complaint does not affirmatively allege a federal claim.").
"The doctrine of complete preemption provides a corollary to
the well-pleaded complaint rule. This doctrine recognizes that
some federal laws evince such a strong federal interest that,
when they apply to the facts underpinning the plaintiff’s state-
law claim, they convert that claim into one arising under fed-
eral law." In re Blackwater, 460 F.3d at 584.
Our roadmap for determination of the issue of complete
preemption is provided by our decision in Lontz, which states
the applicable principles clearly and concisely.
We have noted our obligation "to construe
removal jurisdiction strictly because of the ‘signifi-
cant federalism concerns’ implicated" by it. Mary-
land Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d
BARBOUR v. INTERNATIONAL UNION 23
255, 260 (4th Cir. 2005) (quoting Mulcahey, 29 F.3d
at 151). "Federalism concerns strongly counsel
against imputing to Congress an intent to displace a
whole panoply of state law . . . absent some clearly
expressed direction." Custer v. Sweeney, 89 F.3d
1156, 1167 (4th Cir. 1996) (internal quotes omitted).
Consistent with these principles, we have recognized
that state law complaints usually must stay in state
court when they assert what appear to be state law
claims. See, e.g., Harless v. CSX Hotels, Inc., 389
F.3d 444, 450 (4th Cir. 2004); King, 337 F.3d at 424;
Darcangelo v. Verizon Communications, Inc., 292
F.3d 181, 186 (4th Cir. 2002); Cook v. Georgetown
Steel Corp., 770 F.2d 1272, 1274 (4th Cir. 1985).
The presumption, in other words, is against finding
complete preemption. Custer, 89 F.3d at 1167.
But that presumption is rebuttable, because federal
law occasionally "displace[s] entirely any state cause
of action." Franchise Tax Board, 463 U.S. at 23.
When it does, federal law then "provide[s] the exclu-
sive cause of action for such claims," and therefore
"there is . . . no such thing as a state-law claim" in
the regulated area. Beneficial, 539 U.S. at 11, 123 S.
Ct. 2058. The doctrine of complete preemption thus
prevents plaintiffs from "defeat[ing] removal by
omitting to plead necessary federal questions." Fran-
chise Tax Board, 463 U.S. at 22, 103 S. Ct. 2841. It
thereby ensures compliance with congressional
intent that federal courts be available to resolve cer-
tain claims which are peculiarly national in scope.
Defendants’ burden, then, is to demonstrate that a
federal statute indisputably displaces any state cause
of action over a given subject matter.
In assessing whether defendants have carried their
burden, we may not conflate "complete preemption"
with "conflict" or "ordinary" preemption. While
24 BARBOUR v. INTERNATIONAL UNION
these two concepts are linguistically related, they are
not as close kin jurisprudentially as their names sug-
gest. Complete preemption is a "jurisdictional doc-
trine," while ordinary preemption simply declares
the primacy of federal law, regardless of the forum
or the claim. Sonoco Prods., 338 F.3d at 370-71.
Ordinary preemption has been categorized as a fed-
eral "defense to the allegations." Caterpillar, 482
U.S. at 392, 107 S. Ct. 2425. And as a mere defense,
the "preemptive effect of a federal statute . . . will
not provide a basis for removal." Beneficial, 539
U.S. at 6, 123 S. Ct. 2058 (internal citations omit-
ted). See also Rivet, 522 U.S. at 475-76, 118 S. Ct.
921; Caterpillar, 482 U.S. at 392-93, 107 S. Ct.
2425; Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66,
107 S. Ct. 1542, 95 L.Ed.2d 55 (1987) ("even an
‘obvious’ pre-emption defense does not, in most
cases, create removal jurisdiction"); Franchise Tax
Board, 463 U.S. at 14, 28, 103 S. Ct. 2841. Even if
preemption forms the very core of the litigation, it is
insufficient for removal. Caterpillar, 482 U.S. at
393, 107 S. Ct. 2425.
Lontz, 413 F.3d at 440-41 (alterations in original).
In the case at bar, we believe the district court and the
UAW have conflated complete preemption and ordinary pre-
emption.9 Although the UAW’s claim that the duty of fair rep-
resentation may be a defense of federal law to the Retirees’
claims, it is a defense of ordinary preemption and not a case
where Congress has clearly and unequivocally "displaced any
state cause of action."10
9
We agree with the Lontz Court that "[i]f this distinction amounted to
deciding which court had the honor of dismissing the case, it might appear
to be a dispute over trifles," but we, too, "think more is at stake." 413 F.3d
at 442.
10
In the district court’s original order granting the motion to dismiss, it
did so "for the reasons explained and discussed at length . . . in Taylor v.
BARBOUR v. INTERNATIONAL UNION 25
B.
The UAW bears the heavy burden of proving that § 9(a) of
the NLRA "indisputably displaces" the claims set forth in the
Retirees’ amended complaint and "the presumption . . . is
against finding complete preemption." Lontz, 413 F.3d at 441,
440 (citing Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir.
1996)). "Ordinary preemption has been categorized as a fed-
eral ‘defense to the allegations,’" Lontz, 413 F.3d at 440 (cit-
ing Caterpillar, 482 U.S. at 392), and "declares the primacy
of federal law, regardless of the forum or the claim." Id. (cit-
ing Sonoco Prods., 338 F.3d at 370-71) (emphasis added).
Because ordinary preemption is merely a defense, it does not
"provide a basis for removal." Id. (quoting Beneficial, 539
U.S. at 6).
[I]t is now settled law that a case may not be
removed to federal court on the basis of a federal
defense, including the defense of pre-emption, even
if the defense is anticipated in the plaintiff’s com-
plaint, and even if both parties concede that the fed-
eral defense is the only question truly at issue.
Caterpillar, 482 U.S. at 393 (citation omitted) (second
emphasis added); In re Blackwater, 460 F.3d at 584
("[A]ctions in which defendants merely claim a substantive
federal defense to a state-law claim do not raise a federal
question.") (citing Louisville & Nashville R.R. Co. v. Mottley,
211 U.S. 149, 152 (1908)).
In contrast, complete preemption means that "there is ‘no
such thing’ as the state action." Lontz, 413 at 441 (citing Ben-
Giant Food, Inc., 438 F. Supp. 2d 576 (D. Md. 2006)." However, that case
is simply inapposite to the case at bar. In Taylor, the plaintiffs specifically
pled "breach of the duty of fair representation," which clearly embraced
§ 9(a) of the NLRA. 483 F. Supp. 2d at 585. There is no such pleading in
the case before us and the district court’s opinion in Taylor has no applica-
tion to this case.
26 BARBOUR v. INTERNATIONAL UNION
eficial, 539 U.S. at 11). This Court has made clear that the pri-
mary consideration in finding complete preemption is whether
Congress intended for the statute to entirely displace state law
— an intent that must be clear in the text of the statute. Id.;
see also Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 230
(4th Cir. 1993). Again, our opinion in Lontz precisely explains
what the UAW was required to show in order to establish sub-
ject matter jurisdiction in the district court by virtue of the
complete preemption of the Retirees’ claims.
Recognizing that complete preemption under-
mines the plaintiff’s traditional ability to plead under
the law of his choosing, the Supreme Court has made
clear that it is "reluctant" to find complete preemp-
tion. Metro. Life, 481 U.S. at 65. The Court has, in
fact, found complete preemption in only three stat-
utes. See Beneficial, 539 U.S. at 10-11, 123 S. Ct.
2058 (National Bank Act); Metro. Life, 481 U.S. at
66-67, 107 S. Ct. 1542 (ERISA § 502(a)); Avco
Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machin-
ists, 390 U.S. 557, 560, 88 S. Ct. 1235, 20 L.Ed.2d
126 (1968) (Labor Management Relations Act
("LMRA") § 301). Unsurprisingly, therefore, the
Court has articulated exacting standards that must be
met before it will find complete preemption. Most
notably, the congressional intent that state law be
entirely displaced must be clear in the text of the
statute. See Metro. Life, 481 U.S. at 65-66, 107 S. Ct.
1542.
In fact, the Court in Beneficial emphasized that
the preempting statute must not only create a federal
cause of action, but must also show that Congress
intended it to "provide the exclusive cause of action"
for claims of overwhelming national interest. Benefi-
cial, 539 U.S. at 9, 11, 123 S. Ct. 2058 (emphasis
added).
BARBOUR v. INTERNATIONAL UNION 27
Lontz, 413 F.3d at 441.
Thus, for complete preemption to apply, it is not sufficient
for a defendant to show the plaintiff’s state law claim could
have been made as a federal law claim. Otherwise, the well-
pleaded complaint rule would be turned on its head and
removal jurisdiction would explode exponentially. Instead, a
removing defendant must show not only that the defendants’
state law claim is cognizable as a federal claim, but that the
Congress clearly intended the federal claim to "‘provide the
exclusive cause of action’ for claims of overwhelming
national interest." Id. at 441 (citing Beneficial, 539 U.S. at
11).
It is important to keep in context the claims actually pled
by the Retirees. Significantly, the Retirees plead no claim
against Chrysler, their employer. Neither do they plead a
breach of a collective bargaining agreement or of any duty
owed by the UAW as their bargaining agent. Furthermore,
there is no allegation by the Retirees which makes any term
in a collective bargaining agreement relevant to their state law
claims.
Instead, the Retirees plead typical state law causes of action
for violation of a fiduciary duty brought about by their mem-
bership in an organization. These common law duties are the
basis, historically, of many causes of action in state courts and
do not inherently represent an "overwhelming national inter-
est."
In the case at bar, the UAW directs us to no statutory lan-
guage in § 9(a) of the NLRA, nor to any legislative history,
showing a clear intent by the Congress that all state law
claims relating to all fiduciary duties owed to union members
by virtue of their union membership are exclusively federal
claims under § 9(a). On its face, § 9(a) simply does not reveal
an intent to always foreclose state law claims for breach of
28 BARBOUR v. INTERNATIONAL UNION
fiduciary duty arising solely on the basis of union member-
ship.
In McCormick v. AT & T Technologies, Inc., 934 F.2d 531
(4th Cir. 1991), we explained in the related context of the
LMRA that "[s]ection 301 not only provides federal courts
with jurisdiction over employment disputes covered by col-
lective bargaining agreements, [it] also directs federal courts
to fashion a body of federal common law to resolve such dis-
putes." Id. at 534 (emphasis added). No such congressional
imperative exists with respect to § 9(a) of the NLRA because
the duty of fair representation is, itself, "judicially created."
One would not expect to find a clear statement of congressio-
nal intent regarding a judicially created duty. See Int’l Bhd. of
Elec. Workers v. Foust, 442 U.S. 42, 47 (1979) ("The right to
bring unfair representation actions is judicially ‘implied from
the statute and the policy which it has adopted . . . .’") (quot-
ing Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 204
(1944)); Wrobbel v. Asplundh Constr. Corp., 549 F. Supp. 2d
868, 875 (E.D. Mich. 2008) ("[T]he fact that the federal duty
of fair representation is a judicial creation tends to undermine
the argument that Congress intended § 9(a) to supplant state
law with a federal cause of action.").
Moreover, the Supreme Court, by way of illustration, has
stated that "the union’s duty of fair representation is implied
from its status as the exclusive bargaining representative of
the bargaining unit workers." Marquez v. Screen Actors
Guild, Inc., 525 U.S. 33, 48 (1998) (emphasis added). Thus,
without an express intent to preempt state law, the UAW
nonetheless asks us to find that Congress implicitly intended
to preempt state law based on duties that are themselves
implied from the alleged preemptory statute. This is one
implication too many. A finding of complete preemption so
as to establish federal subject matter jurisdiction in these cir-
cumstances would undermine established concepts of federal-
ism, not to mention contradict the clear precedent of this
Court that "strongly counsel[s] against imputing to Congress
BARBOUR v. INTERNATIONAL UNION 29
an intent to displace ‘a whole panoply of state law[’]. . .
absent some clearly expressed direction." Custer, 89 F.3d at
1167; Lontz, 413 F.3d at 440.
In the absence of a statutory basis for complete preemption
in this case, the UAW then relies on opinions from two other
circuits to support their complete preemption argument. We
find these cases distinguishable and unavailing.
In Richardson v. United Steelworkers, 864 F.2d 1162 (5th
Cir. 1989), the employees sued their union in Texas state
court for failing to warn them that their employer had a statu-
tory right to replace them if they went on strike. Id. at 1164.
In their initial pleading the employees asserted that the union
"acted as bargaining agent for [them]" and, as such, "had a
duty to advise them of measures which their employer could,
and in reasonable probability would, take" in the event they
rejected their employer’s final offer and went on strike. Id.
Initially, the union removed the case to federal court on the
basis that jurisdiction existed pursuant to § 301 of the LMRA,
29 U.S.C. § 185 et seq. With leave of court, the union subse-
quently filed an amended removal petition asserting jurisdic-
tion based on the fact that the plaintiffs’ claims were actually
"for breach of its duty of fair representation under the
NLRA." 864 F.2d at 1164. The employees filed a motion to
remand the case, which the district court denied. Id. at 1165.
On appeal, the Fifth Circuit relied upon the plaintiffs’ alle-
gations that "the Union had a duty to advise them of [their
employer’s] right to replace them if they went on strike," and
"that this duty arose from the Union’s status as their collec-
tive bargaining agent." Id. (emphasis added). The court spe-
cifically noted that the employees’ "assert[ed] no other source
of this duty." Id. Stating that "[t]he Union’s right to act as
plaintiffs’ bargaining agent is conferred by the NLRA," the
court held "that the duties corresponding to this right con-
ferred by federal labor law [were] . . . defined solely by fed-
30 BARBOUR v. INTERNATIONAL UNION
eral labor law" and thus completely preempted state law. Id.
"As a result of this complete preemption of state law . . . the
district court had removal jurisdiction over these actions." Id.
Critical to the court’s holding in Richardson was the fact
that the "[p]laintiffs simply alleged that the Union was ‘the
bargaining agent for Plaintiffs’ and that it ‘acted as bargaining
agent for Plaintiffs in connection with their employment
. . . ." Id. According to the court, "these statements clearly
imply that the Union was the exclusive bargaining agent
under the NLRA for the collective bargaining unit of which
plaintiffs . . . were members, and the subsequent briefs and
motions of all parties, here and below, in fact treat the Union
as such." Id. Of critical importance for our analysis is the
Fifth Circuit’s distinction between the case it considered and
one pled differently under state law:
this case . . . does not present the question of whether
the Union was subject to "an independent state-law
duty of care . . . arising simply from the relationship
of a union to its members." Plaintiffs here allege a
duty arising from the collective bargaining agent’s
relationship under the NLRA with the bargaining
unit members, who may or may not be union mem-
bers. Indeed, plaintiffs’ original petition does not
even allege that plaintiffs are or were members of
the Union. Nor does this case involve state law
actions that are not preempted because the activity
complained of touches interests "deeply rooted in
local feeling" or is only a "peripheral concern of the
NLRA."
Id. at 1167 (internal citations omitted) (emphases added).
Directly contrary to the factual basis pled in Richardson,
the Retirees’ amended complaint states that "[a]s a result of
their union membership, the UAW owed [them] duties of loy-
alty, fidelity and full disclosure of all material facts." J.A. 26.
BARBOUR v. INTERNATIONAL UNION 31
In fact, these are the only duties the plaintiffs allege they were
owed by the UAW in the context of their tort claims. Unlike
the plaintiffs in Richardson, who "did not allege any breach
of a state tort duty that exists independently of the NLRA-
established collective bargaining relationship, which is the
central concern of the NLRA," id. at 1167, the Retirees have
alleged "an independent state-law duty of care arising simply
from the relationship of a union to its members." See id.
(quoting Int’l Bd. of Elec. Workers v. Hechler, 481 U.S. 851,
862 n.5 (1987)). Thus, we conclude Richardson supports the
Retirees’ argument against a finding of complete preemption
and is of no assistance to the UAW.
In the other case relied upon by the UAW, BIW Deceived
v. Local S6, Indus. Union of Marine and Shipbuilding Work-
ers, 132 F.3d 824 (1st Cir. 1997), tradesmen went to Maine
to interview for employment with Bath Iron Works. Id. at
827. Union representatives participated in the interviews pur-
suant to a collective bargaining agreement and, according to
the tradesmen, assured them of continued employment due to
Bath’s great need for their skills. Id. Despite these assurances,
however, Bath laid off the tradesmen several months after
they began their employment. Id. Not surprisingly, the work-
ers filed suit against the union in state court, alleging, among
other things, claims for negligence and fraudulent misrepre-
sentation. Id. The union removed the case to federal court on
the basis that the plaintiffs’ claims were barred by § 9(a) of
the NLRA and/or § 301 of the LMRA.
On appeal, the First Circuit determined
that [duty of fair representation] preemption operates
in much the same fashion as [LMRA] section 301
preemption. . . . [W]e hold that a district court pos-
sesses federal question jurisdiction when a com-
plaint, though garbed in state-law raiment,
sufficiently asserts a claim implicating the duty of
fair representation.
32 BARBOUR v. INTERNATIONAL UNION
Id. at 831-32 (internal citations omitted). The court then
resorted to the "artful pleading doctrine" to "conclude without
serious question that the instant complaint reveals a colorable
question of federal law and that, therefore, the district court
did not err when it denied the motion to remand." Id. at 833.
We find the First Circuit’s reasoning unpersuasive for several
reasons.
First, in support of its holding, the district court cited Rich-
ardson, which, for the reasons set forth above, specifically
excepted suits under state law, like that of the Retirees, from
the reach of complete preemption. Second, mindful of our
obligation to "strictly construe removal jurisdiction," Mul-
cahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148,
151 (4th Cir. 1994), we are not convinced, as we noted above,
that the "manifestation of congressional will" with respect to
the § 9(a) duty of fair representation applies with the same
clarity as under § 301 of the LMRA in cases such as that now
before us. Lastly, we note the First Circuit found, without
citation to the text of the statute or any of its legislative his-
tory, an implication of complete preemption for an implied
duty of fair representation. See 132 F.3d at 831-33. This sim-
ply does not adhere to the Lontz requirement that "congressio-
nal intent that state law be entirely displaced must be clear in
the text of the statute." 413 F.3d at 441.
Keeping in mind that any reasonable doubts must be
resolved against complete preemption, id., we cannot con-
clude, as the UAW urges, that every state law cause of action
based on a misrepresentation or negligent omission made by
a union to some or all of its members must necessarily flow
from exclusive federal duties under § 9(a). Further, in view of
the lack of any clear expression of Congressional intent to
preempt such state law claims, we cannot conclude that § 9(a)
of the NLRA "wholly displaces" every state law cause of
action in circumstances such as before us in the case at bar.
Beneficial, 539 U.S. at 8. Thus, we must conclude that the
doctrine of complete preemption does not apply in this case.
BARBOUR v. INTERNATIONAL UNION 33
Consequently, there was no basis for removal of this case to
the district court under 28 U.S.C. § 1441 and the district court
lacked jurisdiction. The district court erred in concluding oth-
erwise and in not granting the Retirees’ motion to remand the
case to state court.11,12
11
In the event that we found, as we have, that the duty of fair representa-
tion in § 9(a) does not completely preempt the Retirees’ state law claims,
the UAW argued in the alternative that the claims are completely pre-
empted by § 301 of the LMRA. Preemption under § 301 can only occur
when claims are "founded directly on rights created by collective-
bargaining agreements" or are "substantially dependent on analysis of a
collective-bargaining agreement." Caterpillar Inc., 482 U.S. at 394 (inter-
nal quotation marks omitted).
The UAW bases its argument on the following allegations made by two
of the retiree plaintiffs: that they "contacted their Union representatives
and asked to grieve or appeal the UAW’s false statements to them regard-
ing the offer of a retirement package and retroactive nature of any package
subsequently offered. Both . . . were informed by Union officers that no
grievance and/or appeal could be filed regarding this matter." J.A. 51-52.
These allegations, it is argued, "requires interpretation of the CBA."
Appellee’s Br. at 39. We disagree.
As the Retirees point out, their complaint does not charge the UAW
with negligence by denying access to a grievance procedure or with negli-
gent representation during a grievance proceeding. The allegations, which
appear in the "fact" section of the complaint, merely explain what inqui-
ries some of the plaintiffs made in response to learning they were ineligi-
ble for the incentive packages. Unlike the situation in BIW Deceived, in
which the union stood "accused of violating a duty of care that flowed to
it pursuant to the [collective bargaining agreement]," 132 F.3d at 833, this
record does not indicate any need to analyze the terms of a collective bar-
gaining agreement in connection with the Retirees’ claims.
In sum, the Retirees’ state law claims for negligence and negligent mis-
representation are not preempted by § 301.
12
We express no view as to the application of ordinary preemption as
a factual defense which the UAW may well raise in the state court if it be
so advised. "We [also] express no view as to whether such claims on the
merits are preempted by federal law, as this is a question for state courts
to resolve." Lontz, 413 F.3d at 438.
34 BARBOUR v. INTERNATIONAL UNION
IV.
In conclusion, we adopt the last-served defendant rule as
the law of this circuit and affirm the judgment of the district
court that the defendants timely filed the notice of removal.
Further, we hold that the district court was without subject
matter jurisdiction over the Retirees’ claims because the doc-
trine of complete preemption does not apply here to create a
basis for removal under 28 U.S.C. § 1441. Accordingly, we
reverse the judgment of the district court granting the UAW’s
motion to dismiss and remand this case to the district court
with instructions to remand the case to the Maryland state
court.
AFFIRMED IN PART; VACATED AND
REMANDED WITH INSTRUCTIONS
HAMILTON, Senior Circuit Judge, concurring in the judg-
ment in part and dissenting in part:
Over seventeen years ago, in McKinney v. Board of Trust-
ees of Mayland Community College, 955 F.2d 924 (4th Cir.
1992), this court allowed two defendants, who were not
served within thirty days of the date the first three defendants
were served, to join a removal petition that was filed by the
other ten defendants within thirty days of the date the first
three defendants were served. Id. at 926, 928. In so allowing,
we rested our decision on the premise that, in removal cases
involving multiple defendants, a removal petition must be
filed within thirty days of the date the first-served defendant
is served. Id. at 926. Under McKinney, the defendants’
removal petition in this case is untimely, as it was filed more
than thirty days after the International, the first-served defen-
dant in this case, was served.
Fortunately for the defendants, the majority today jettisons
McKinney, choosing instead to adopt the so-called "Last-
Served Defendant Rule," a rule it believes will best serve
BARBOUR v. INTERNATIONAL UNION 35
removal when multiple defendants are involved. The Last-
Served Defendant Rule is totally inconsistent with our deci-
sion in McKinney, as the rule allows a removal petition to be
filed more than thirty days after the date the first-served
defendant was served. Because a panel of this court cannot
overrule a prior panel, Mentavlos v. Anderson, 249 F.3d 301,
312 n.4 (4th Cir. 2001), I believe we are bound by our prece-
dent in McKinney. Moreover, to avoid the dictates of McKin-
ney, the majority takes language from the Supreme Court’s
decision in Murphy Brothers, Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344 (1999), and uses it out of context to con-
clude that this "no[n-] dispositive" case, ante at 16, effectively
overrules McKinney. With all due respect to the majority,
Murphy Brothers does not overrule McKinney, because: (1)
Murphy Brothers did not involve multiple defendants; and (2)
the concerns of Murphy Brothers are not implicated in this
case. Accordingly, I dissent from the majority’s decision con-
cluding that the defendants’ petition for removal was timely
filed under the Last-Served Defendant Rule. However, I con-
cur in the majority’s judgment to the extent it remands the
case to state court.
I
A
"Federal courts are courts of limited jurisdiction. They pos-
sess only that power authorized by Constitution and statute,
. . . which is not to be expanded by judicial decree." Kokkonen
v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994). We presume "that a cause lies outside this limited
jurisdiction, . . . and the burden of establishing the contrary
rests upon the party asserting jurisdiction." Id. Removal stat-
utes, in particular, must be strictly construed, inasmuch as the
removal of cases from state to federal court raises significant
federalism concerns. Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108-09 (1941). Doubts about the propriety of
removal should be resolved in favor of remanding the case to
36 BARBOUR v. INTERNATIONAL UNION
state court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816
(4th Cir. 2004) (en banc); Hartley v. CSX Transp., Inc., 187
F.3d 422, 425 (4th Cir. 1999).
Section 1441(a) of Title 28 provides that "the defendant or
the defendants" may seek to remove "any civil action brought
in a State court of which the district courts of the United
States have original jurisdiction." 28 U.S.C. § 1441(a). Sec-
tion 1446 of Title 28 describes the appropriate removal proce-
dure to invoke federal jurisdiction, and requires the defendant
seeking removal to file a timely removal petition stating the
grounds for removal with the appropriate federal district
court. Id. § 1446(a). In order to be timely,
[t]he notice of removal of a civil action or proceed-
ing shall be filed 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
....
Id. § 1446(b). The thirty-day window for removal is designed
to prevent "undue delay in removal and the concomitant waste
of state judicial resources." Lovern v. Gen. Motors Corp., 121
F.3d 160, 163 (4th Cir. 1997).
Unlike § 1446(a), § 1446(b) does not speak in terms of
multiple defendants. However, it is well-settled in cases
involving multiple defendants that "all of the defendants must
agree to the removal of the state court action," Creasy v. Cole-
man Furniture Corp., 763 F.2d 656, 660 (4th Cir. 1985), and,
consequently, all served defendants must join in the removal
petition. Abrego Abrego v. The Dow Chemical Co., 443 F.3d
676, 681 (9th Cir. 2006).
The omission of the term "defendants" in § 1446(b) has led
to a circuit split over whether every defendant in a multiple-
defendant case has a right to seek removal within thirty days
BARBOUR v. INTERNATIONAL UNION 37
of service or whether the thirty-day window begins to run
from receipt of service by the first-served defendant. Our
decision in McKinney has been recognized as an intermediate
rule (the McKinney Intermediate Rule), between the First-
Served Defendant Rule (adopted by the Fifth Circuit) on the
one hand and the Last-Served Defendant Rule (adopted by the
Sixth, Eighth, and Eleventh Circuits) on the other. See, e.g.,
Guyon v. Basso, 403 F. Supp. 2d 502, 506-07 (E.D. Va.
2005). And with one exception, district courts in this circuit
have faithfully applied the McKinney Intermediate Rule. See
Ford v. Baltimore City Dep’t of Soc. Servs., No. 06-2134,
2006 WL 3324896, at *1-2 (D. Md. Nov. 13, 2006) (unpub-
lished) (following McKinney Intermediate Rule); Guyon, 403
F. Supp. 2d at 507-10 (same); Superior Painting & Contract-
ing Co., Inc. v. Walton Tech., Inc., 207 F. Supp. 2d 391, 392-
93 (D. Md. 2002) (same); Branch v. Coca-Cola Bottling Co.,
83 F. Supp. 2d 631, 634-36 (D.S.C. 2000) (same); Bazilla v.
Belva Coal Co., 939 F. Supp. 476, 478 (S.D. W. Va. 1996)
(same); Beasley v. Goodyear Tire & Rubber Co., 835 F. Supp.
269, 272 (D.S.C. 1993) (same); but see Ratliff v. Workman,
274 F. Supp. 2d 783, 786-90 (S.D. W. Va. 2003) (declining
to follow McKinney Intermediate Rule).
Stated succinctly, the First-Served Defendant Rule requires
a removal petition to be filed within thirty days of service on
the first-served defendant and requires all defendants to join
the removal petition within the first-served defendant’s thirty-
day window. Like the First-Served Defendant Rule, the
McKinney Intermediate Rule requires a removal petition to be
filed within the first-served defendant’s thirty-day window,
but gives later-served defendants thirty days from the date
they were served to join the removal petition. The Last-
Served Defendant Rule gives each defendant his own thirty-
day window; thus, under this rule, the thirty-day window can
expire for all but the last-served defendant, as long as the last-
served defendant files a timely removal petition within thirty
days from the date of service on that defendant.
38 BARBOUR v. INTERNATIONAL UNION
B
In choosing to reject the McKinney Intermediate Rule, the
majority posits that the rule is premised on dicta, primarily
from Footnote 3 of the McKinney decision. However, Foot-
note 3 simply states the necessary corollaries that arise from
the McKinney court’s adoption of the principle that a removal
petition must be filed within thirty days of service on the first-
served defendant. Thus, although the inclusion of Footnote 3
in the McKinney decision arguably was not necessary to the
decision, it provides by way of further explanation what are
the consequences of embracing a rule that requires the
removal petition to be filed within thirty days of service on
the first-served defendant.
In McKinney, a group of dismissed employees of Mayland
Community College sued the college’s board of trustees in
their individual and official capacities in North Carolina state
court, alleging unlawful discharge. 955 F.2d at 925. Three of
the twelve defendants were served on April 25, 1988, while
eight others were served on May 19, 1988. Id. The three
members of the first group and seven of the eight from the
second group filed for removal on May 25, 1998, thirty days
after service on the first three. Id. The defendants could not
find the eighth defendant in the second group to obtain her
consent to the removal petition. Id. The plaintiffs served the
final, twelfth defendant after the filing of the removal petition.
Id. The eighth and twelfth defendants joined in the petition for
removal on June 20, 1998, which was the thirtieth day from
the time of service on the eighth defendant and well within
the time limit for the twelfth defendant, but more than thirty
days after the first set of three defendants was served. Id.
In moving to remand the case to state court, the plaintiffs
argued that the defendants were required to consent to the
removal petition within thirty days of service on the first
group of defendants. Id. The district court rejected that con-
tention, holding that individual defendants have thirty days
BARBOUR v. INTERNATIONAL UNION 39
from the time they are served with process or with a com-
plaint to join in an otherwise valid removal petition. Id.
The issue in McKinney was whether the eighth defendant
(referred to as "B") had thirty days from the date he was
served to join the removal petition or whether he had to join
the removal petition within the thirty days of service on the
first three defendants (referred to as "A"). Id. at 926. Footnote
3 of the opinion appears at this point, setting forth the neces-
sary corollaries to our later adoption of the principle that a
removal petition must be filed within thirty days of service on
the first-served defendant:
In a different situation, where B is served more than
30 days after A is served, two timing issues can
arise, and the law is settled as to each. First, if A
petitions for removal within 30 days, the case may
be removed, and B can either join in the petition or
move for remand. . . . Second, if A does not petition
for removal within 30 days, the case may not be
removed.
Id. at 926 n.3.
Turning to the issue before the court, we began our analysis
in McKinney by noting that, since § 1446(b) contemplates
only one defendant, the language of the section does not pro-
vide any guidance when multiple defendants are served on
different days. Id. at 926. We then observed that the legisla-
tive history of § 1446(b) does not address the situation where
multiple defendants are served on different days. Id. As a
result, we turned to the circuit case law and noted that the
Fifth Circuit was the only circuit to address the issue of
removal in multiple-defendant cases. Id.
In Getty Oil Corporation v. Insurance Company of North
America, 841 F.2d 1254 (5th Cir. 1988), three defendants
were served, the first on September 3, the second on Septem-
40 BARBOUR v. INTERNATIONAL UNION
ber 5, and the third on September 24. Id. at 1256. The first
and second defendants petitioned for removal on September
26, but the third defendant joined the petition on October 24,
which was thirty days after it was served but fifty-one days
after the first defendant was served. Id. The Getty Oil court
held that: (1) a removal petition must be filed within thirty
days of the date of service on the first-served defendant and
(2) a later-served defendant must join the removal petition "no
later than thirty days from the day on which the first defen-
dant was served." Id. at 1263.
In addressing Getty Oil’s holdings in McKinney, we first
noted our explicit agreement with Getty Oil’s first holding,
stating that the first-served defendant "clearly must petition
for removal within thirty days." McKinney, 955 F.2d at 926
(emphasis added). Following our agreement with the first
holding of Getty Oil, we proceeded to address the question
raised by Getty Oil’s second holding, that is, the question of
whether a later-served defendant must join the petition within
thirty days of the date of service on the first-served defendant,
as the court held in Getty Oil, or within thirty days of service
on the later-served defendant. Id. at 926-28. In rejecting the
second holding of Getty Oil, we first observed that it would
be "inequitable" to require a later-served defendant to join a
timely filed removal petition within thirty days of the date of
service on the first-served defendant. Id. at 927.
We next rejected the plaintiffs’ argument that it should be
entitled to know within a prescribed period of time whether
the case will proceed in state or federal court, noting first that,
if the plaintiffs wanted to know which court they will be in
at the earliest possible date, they need only to make sure that
all defendants are served at about the same time. Id. Second,
we noted that the plaintiffs’ entitlement was no greater than
the defendant’s right to remove a case that could be heard in
federal court. Id.
Finally, we considered a policy concern, which was not
present when Getty Oil was decided. In 1988, Congress
BARBOUR v. INTERNATIONAL UNION 41
amended § 1446(a) to make petitions for removal subject to
Rule 11 of the Federal Rules of Civil Procedure. Id. at 928.
We observed that, as amended, § 1446(a) is a further reason
to allow all defendants a full thirty days to investigate the
appropriateness of removal. Id. Otherwise, a later-served
defendant faced a Hobson’s Choice: either to join hurriedly in
a petition for removal and face possible Rule 11 sanctions or
to forego removal. Id. In our view, Congress surely did not
intend to impose such a choice on a later-served defendant. Id.
The majority chooses to reject the McKinney Intermediate
Rule essentially by isolating its examination of the case to
Footnote 3 and characterizing the footnote as dicta. Whether
Footnote 3 is dicta is really beside the point and of no mate-
rial importance. The critical point of the McKinney decision
is that the McKinney court explicitly embraced Getty Oil’s
first holding that a petition for removal must be filed within
thirty days of the date the first-defendant is served. Id. at 926.
Once the McKinney court so embraced, Footnote 3 provides,
by way of explanation, two necessary corollaries to our agree-
ment with Getty Oil’s first holding. Both such corollaries arise
where the later-served defendant is served more than thirty
days after the first-served defendant is served. In the first nec-
essary corollary, removal is permitted if the first-served
defendant petitions for removal within thirty days of being
served and the later-served defendant joins the petition for
removal within thirty days of being served. Id. at 926 n.3. In
the second necessary corollary, removal is not permitted if the
first-served defendant does not petition for removal within
thirty days of being served. Id.
The majority states that Footnote 3 of McKinney "consti-
tutes non-binding dicta." Ante at 13. According to the major-
ity, in McKinney, there was a timely petition for removal filed
within thirty days of service on the first-served defendant(s)
and in the present case the first-served defendant did not so
petition. From this fact, the majority concludes that "the issue
of initial removal by a defendant other than the first-served
42 BARBOUR v. INTERNATIONAL UNION
defendant was simply not before the court in McKinney." Ante
at 14. Because the issue of initial removal was not before the
McKinney court, the majority goes on to state that "the
McKinney court’s expression in Footnote 3 regarding the
application of § 1446 in the circumstance where the first-
served defendant had not timely filed a notice of removal was
gratuitous," and thus, Footnote 3 is "classic judicial dictum."
Ante at 14.
The obvious flaw in the majority’s analysis is its initial
premise—that the McKinney court did not address the ques-
tion of initial removal. Clearly, the McKinney court did, when
it agreed with the Getty Oil court’s first holding that the first-
served defendant must petition for removal with thirty days of
being served. This agreement with the Getty Oil court’s first
holding was critical to the decision, in that it closed the door
to a reading of § 1446(b) that would have allowed later-served
defendants to petition for removal within thirty days of being
served when the first-served defendant had not. Cf. Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 66-67 (1996) ("We
adhere in this case, however, not to mere obiter dicta, but
rather to the well-established rationale upon which the Court
based the results of its earlier decisions. When an opinion
issues for the Court, it is not only the result but also those por-
tions of the opinion necessary to that result by which we are
bound.").
To get around the obvious flaw in its analysis, the majority
out of necessity describes our adoption of Getty Oil’s first
holding as dicta as well. The problem with this description is
that McKinney outlined what were the requirements for
removal in multiple-defendant cases, just like a court outlines
the requirements for a plaintiff to maintain a certain cause of
action. The first requirement outlined in McKinney was that
a timely removal petition must be filed within thirty days of
the date the first-served defendant is served. Of course, the
McKinney court could have chosen a very different analytical
path, holding that such a removal petition need not be filed
BARBOUR v. INTERNATIONAL UNION 43
within that time, i.e., within thirty days of the date any of the
defendants were served. However, the McKinney court closed
that very door with its adoption of Getty Oil’s first holding.
In sum, none of the defendants sought to remove the case
within thirty days of the date the International was served.
Consequently, under McKinney, removal was improper.
C
In its opinion, the majority also relies upon the Supreme
Court’s decision in Murphy Brothers and suggests that this
"no[n-] dispositive" case, ante at 16, mandates that we reject
our McKinney Intermediate Rule. Murphy Brothers did not
involve multiple defendants. It involved a single defendant,
and the issue to be decided was what service event triggered
the running of the thirty-day window. The plaintiff argued
that the January 29, 1996 service of a faxed courtesy copy of
the complaint triggered the running of the thirty-day window;
the defendant countered that February 12, 1996, the date of
formal service in accordance with local law, triggered the run-
ning of the thirty-day window. 526 U.S. at 348. The Court
held that a defendant’s time to remove "is triggered by simul-
taneous service of the summons and complaint, or receipt of
the complaint, ‘through service or otherwise,’ after and apart
from service of the summons, but not by mere receipt of the
complaint unattended by any formal service." Id. The Court
did not address, or even mention, the First-Served Defendant
Rule, the McKinney Intermediate Rule, or the Last-Served
Defendant Rule, or, for that matter, consider how to calculate
the period for removal in a case involving multiple defendants
served at different times. Indeed, Murphy Brothers was based
on the principle that "[a]n 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. That principle is not threatened or even
implicated in this case. The McKinney Intermediate Rule sim-
ply does not require or obligate later-served defendants to
44 BARBOUR v. INTERNATIONAL UNION
engage in litigation prior to service. Moreover, completely
different considerations come into play in cases involving
multiple defendants. Under such circumstances, it is unfath-
omable, absent an en banc decision from this court or a
Supreme Court case explicitly or implicitly overruling the
McKinney Intermediate Rule, that Murphy Brothers mandates
that we reject our McKinney Intermediate Rule.
D
My analysis need not proceed further, as it is clear at this
point that removal was improper under our decision in
McKinney and that Murphy Brothers did not, explicitly or
implicitly, overrule McKinney. However, I offer these brief
comments concerning what appears to be the real rub in the
case, the majority’s disdain for the McKinney Intermediate
Rule. Such disdain appears to emanate from the court’s view
that the McKinney Intermediate Rule is inequitable, because
it allows earlier-served defendants to decide whether a case
remains in state court or is removed to federal court. Ante at
17 (noting that McKinney sought to avoid inequitable results).
However, our embracement of the McKinney Intermediate
Rule is not as off-the-wall as the majority would have us
believe. The McKinney Intermediate Rule is an inevitable fea-
ture of a court of limited jurisdiction. Where a removal peti-
tion is not filed within thirty days of service on the first-
served defendant, the later-served defendants are in no worse
position than they would have been if the first-served defen-
dant (or any other defendant) had opposed removal. As Judge
Shedd noted in his district court opinion in Branch, "[t]he
Court sees no reason why [the first-served defendant’s] failure
to remove in a timely manner should be viewed differently
simply because another defendant is in the case." 83 F. Supp.
2d at 636. Moreover, the inequity sought to be avoided in
McKinney was the First-Served Defendant Rule’s requirement
that a later-served defendant join the removal petition within
the first-served defendant’s thirty-day window, and unques-
tionably the McKinney Intermediate Rule avoids this inequity.
BARBOUR v. INTERNATIONAL UNION 45
Finally, the McKinney Intermediate Rule is less intrusive than
the Last-Served Defendant Rule on the principle that we con-
strue removal statutes strictly, Shamrock Oil, 313 U.S. at 108-
09, as the Last-Served Defendant Rule offers the most expan-
sive reading of § 1446(b). To be sure, the Last-Served Defen-
dant Rule provides the greatest potential for delay in the
removal context.
Another equitable feature of the McKinney Intermediate
Rule is that it prevents the first-served defendant from bene-
fiting from his inaction. In effect, the McKinney Intermediate
Rule requires the first-served defendant to act, and if he does
not, he forfeits his right to remove the case or to consent to
the removal. Every day litigants are penalized for their failure
to act. And the facts of this case certainly do not help the
defendants’ cause. The defendants were all represented by the
same attorneys and the most sophisticated of the three defen-
dants, the International, was served first and deliberately
chose not to remove the case. Yet, under the majority’s adop-
tion of the Last-Served Defendant Rule, the International
receives a benefit from its inaction, being allowed to join a
removal petition more than thirty days after service on it,
unlike many defendants who fail to timely remove their cases.
If McKinney is concerned with equity, as the majority inti-
mates, the equities in this case simply do not favor the defen-
dants.
Rightly or wrongly, McKinney sought to strike an equitable
balance, allowing a later-served defendant thirty days to act
in the limited circumstance where a timely petition was filed
by an earlier-served defendant. This balance was a conse-
quence of the McKinney court’s desire to avoid reading words
(e.g., first-served or last-served) into the statute. In other
words, to give effect to all the language in § 1446(b), McKin-
ney sought to require every defendant to act within thirty days
of being served, beginning with the first-served defendant. If
a removal petition was not filed within thirty days of service
on the first-served defendant, then the case could not be
46 BARBOUR v. INTERNATIONAL UNION
removed. If a petition was so filed, then every later-served
defendant can join or seek a remand to state court. Obviously,
the Last-Served Defendant Rule does not require any of the
defendants to act in a timely manner, except the last-served.
Having to choose between a reading of the statute that
required all of the defendants to act in a timely manner as
opposed to one, we chose the construction that would apply
to all defendants in the event removal is to be achieved. There
is nothing inequitable about interpreting § 1446(b) in a man-
ner that applies its thirty-day timeframe to all defendants
where removal is to be achieved.
II
In the final analysis, this case is about much more than
whether one agrees or disagrees with the McKinney Interme-
diate Rule. It is about how one panel of this court should treat
the opinion of a prior panel or view the impact of a non-
dispositive Supreme Court case on our circuit precedent. I am
concerned that the majority’s opinion will lead to a deteriora-
tion of the respect we have given over the years to an opinion
of a prior panel, which panel spoke for the entire court. While
such respect fosters collegiality, more importantly, it main-
tains uniformity in our decisions. I am also concerned that the
majority’s use of a non-dispositive Supreme Court case to
effectively overrule our established circuit precedent will
open the door to further manipulation of such precedent.
It is my fervent hope that en banc review will be sought
and ultimately granted by the full court, so that the ideals of
respect, collegiality, and uniformity, hallmarks of the Fourth
Circuit, remain intact, regardless of the outcome. Clearly, an
en banc setting is the best, and appropriate, place for the court
to give the McKinney Intermediate Rule thumbs-up or
thumbs-down.
It follows that I would vacate the district court’s decision
holding that the defendants’ petition for removal was timely
BARBOUR v. INTERNATIONAL UNION 47
filed and remand the case to the district court with instructions
to remand the case to state court.