[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-12258 ELEVENTH CIRCUIT
JULY 29, 2008
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 06-80702-CV-KLR
LORI JO BAILEY,
as the Personal Representative of the
Estate of Chad Beal,
Plaintiff-Appellant,
versus
JANSSEN PHARMACEUTICA, INC.,
JANSSEN, L.P., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 29, 2008)
Before ANDERSON and SILER,* Circuit Judges.**
______________
* Honorable Eugene Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
** Judge Frank M. Hull was a member of the panel which heard oral argument but recused herself
following oral argument and did not participate in this decision. The case is decided by a quorum.
See 28 U.S.C. §46(d) (2006); 11th Cir. R. 34-2.
ANDERSON, Circuit Judge:
Plaintiff-appellant, Lori Jo Bailey, brought this wrongful death action on
behalf of Chad Edgar Beal (“Beal”), who died of fentanyl toxicity after he used a
prescription patch manufactured, distributed, and retailed by the defendant
companies. The action was originally filed in state court and removed under 28
U.S.C. § 1441(a), pursuant to § 1446(b), by the last-served defendant more than
thirty days after service on the other defendants. Appellant moved to remand the
action to state court, asserting that the notice of removal was untimely. The district
court denied this motion and thereafter granted defendants’ motions to dismiss with
prejudice the first amended complaint on procedural and substantive grounds.
Appellant challenges the district court’s denial of her motion to remand and the
dismissal of her complaint.
This case presents an issue of first impression for the Court with regards to
whether, in multi-defendant litigation, the limitations period for removal expires
upon thirty days from service on the first-served or last-served defendant under 28
U.S.C. § 1446(b). For the reasons that follow, we adopt the so-called “last-served”
defendant rule and accordingly affirm the district court’s denial of appellant’s
motion to remand the case to state court. We resolve the appeal of the motion to
dismiss in an unpublished appendix to this opinion.
2
I. FACTS
The decedent, Chad Edgar Beal, died on March 5, 2004, after having
received an allegedly lethal dose of a pain narcotic, fentanyl, via a transdermal skin
patch prescribed to him by his doctor. The prescription patch, Duragesic, was
manufactured by defendant Alza Corporation (“Alza”) and distributed by defendant
Janssen Pharmaceutica, Inc. (“Janssen”), both of which are subsidiaries of the
holding company, defendant Johnson & Johnson, Inc. (“Johnson & Johnson”). The
patch was sold to Beal at a south Florida store of defendant Walgreen Co.
(“Walgreen”).
Beal’s administrator originally brought this wrongful death action in Palm
Beach County, Florida, on February 28, 2006. The first defendant served was
Walgreen, on May 12, 2006. The next defendant, Alza, was served on May 15,
2006, and defendant Janssen was served several days later on May 19, 2006. Alza
and Janssen filed motions to dismiss in state court on June 12, 2006. The last
defendant served was Johnson & Johnson, and it was served on June 22, 2006. All
defendants utilized the same attorney to represent them in the proceedings in state
court. On July 24, 2006, the last-served defendant, Johnson & Johnson, filed a
notice of removal of the action based on complete diversity, pursuant to 28 U.S.C.
3
§1446(b).1
Once the action was in federal court, the appellant timely sought remand,
arguing that, under §1446(b), the time for filing a notice of removal runs from the
date of service on the first defendant—here, Walgreen on May 12, 2006—and
therefore Johnson & Johnson’s notice was not timely brought within 30 days of the
May 12 service.2 In its November 14, 2006, order, the district court adopted the
“last-served” defendant rule, which permits each defendant to file a timely motion
for removal within thirty days of receipt of service by that individual defendant.
Under this rule, earlier-served defendants who may have waived their right to
independently seek removal by failing to timely file a notice of removal—as
Janssen, Alza, and Walgreen did here—may nevertheless consent to a timely motion
by a later-served defendant. The district court, therefore, denied the motion to
remand the action to state court, having found that the notice of removal was timely
and that all defendants consented to the notice.
II. STANDARD OF REVIEW
1
This motion was filed within thirty days of receipt of service by Johnson &
Johnson, under Fed. R. Civ. P. 6(a). Thirty days from receipt of service would have been on July
22, 2006, a Saturday, so the last day for filing was July 24, 2006, the following Monday.
2
Under appellant’s argument, the time for removal would have expired before
Johnson & Johnson even received service of process.
4
Because it involves questions of federal subject matter jurisdiction, we review
the denial of a motion to remand a removed state court action de novo. Pacheco de
Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Moreover, the
interpretation of § 1446(b) is a question of law we also review de novo. United
States v. Hooshmand, 931 F.2d 725, 737 (11th Cir. 1991). We have jurisdiction to
consider denial of a motion to remand upon the entry of a final order, which in this
case was the district court’s April 11, 2007, order, dismissing with prejudice the
first amended complaint. Schell v. Food Mch. Corp., 87 F.2d 385, 387 (5th Cir.
1937).
III. DISCUSSION
Section 1441(a) authorizes a defendant to seek removal of a suit originally
brought in state court when the federal court has diversity jurisdiction over the
cause of action. 28 U.S.C. §1441(a) (2006). Section 1446 describes the appropriate
removal procedure to invoke federal jurisdiction, and requires the defendant seeking
removal to file a timely notice of removal stating the grounds for removal with the
appropriate federal district court. 28 U.S.C. §1446(a). In order to be timely,
[t]he 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 copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based . . . .
5
§1446(b). The Supreme Court held in Murphy Brothers., Inc. v. Michetti Pipe
Stringing, Inc., 526 U.S. 344, 347-48, 119 S. Ct. 1322, 1325 (1999), that the time-
window in § 1446(b) “is triggered by simultaneous 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.”
On its face, §1446(b) does not appear to address itself to multi-defendant
litigation. 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.”). In applying the statute to multi-defendant litigation,
courts have split over whether each individual defendant has a right to seek removal
within thirty days of receipt of service or whether the appropriate time window for
§1446(b) runs from receipt of service by the first-served defendant only3—in other
words, whether the “first-served” or “last-served” defendant triggers §1446(b)’s
3
Commentators have split as well: the Sixth Circuit observed in Brierly that at the
time it decided to endorse the last-served defendant rule, the two leading treatises, Wright &
Miller and Moore’s, came to divergent conclusions on the issue. See Brierly, 184 F.3d at 532
n.2.
6
limitations period.4 Appellant urges us to adopt the first-served defendant rule and
accordingly find that Johnson & Johnson’s notice of removal was not timely under
§1446(b) because it was filed more than thirty days after receipt of service of
process by the first-served defendant. For the following reasons, we reject
appellant’s argument and interpret §1446(b) to permit each defendant thirty days in
which to seek removal. We thus conclude that Johnson & Johnson’s notice of
removal was timely.
First, we observe that the trend in recent case law favors the last-served
defendant rule. See, e.g., General Pump & Well, Inc. v. Laibe Supply Corp., No.
CV607-30, 2007 WL 3238721, *2 (S.D. Ga. Oct. 31, 2007) (“More recently,
however, the trend in the case law has been toward the later-served rule. The Sixth
and the Eighth Circuits, several district courts in this circuit and a court in this
district have followed the later served rule.”). Among the four courts of appeals that
have considered this issue, only the Fifth Circuit and (seemingly) the Fourth Circuit5
4
The nomenclature used by the courts on this issue is, generally, “last-served”
versus “first-served,” and so we have accordingly used this same language. But we note that it
may be more in keeping with our interpretation of the rule to think of the “last-served” defendant
rule as the “each defendant” rule. In other words, the statute should be read to permit each
defendant, whether first or last served or somewhere in between, thirty days within which to file
a notice of removal upon receipt of service.
5
The Fourth Circuit’s decision in McKinney v. Board of Trustees of Mayland
Community College, 955 F.2d 924 (4th Cir. 1992), endorsed the first-served rule, but in dicta.
See id. at 926 n.3 (“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
7
have adopted the first-served rule, and have held that a notice of removal is only
timely if it is filed within thirty days of service of process on the first defendant.
See Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986) (“The general rule
. . . is that if 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.”) (internal
quotations and punctuation omitted); Getty Oil Corp. v. Ins. Co. of N. Am., 841
F.2d 1254, 1262-63 (5th Cir. 1988) (“In cases involving multiple defendants, the
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.”); see also id. at 926 (“While the first served defendant clearly must petition for
removal within thirty days, section 1446(b) does not imply in any way that later served
defendants have less than thirty days in which to act.”). The actual issue in McKinney, however,
was whether a later-served defendant has thirty days after effective service to join in a timely
petition for removal filed within thirty days of the first-served defendant. The petition for
removal was filed within thirty days of the first-served defendant in McKinney, but a later-served
defendant did not join the notice within the original thirty-day window. The court held that each
individual defendant has thirty days in which to join a timely filed notice of removal. Id. at 928.
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; the court
said:
[T]he Fourth Circuit has adopted a position 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 Services, Inc., 284 F. Supp. 2d 1311, 1315-16 (N.D. Ala. 2003) (internal
citations omitted).
8
thirty-day period begins to run as soon as the first defendant is served (provided the
case is then removable).”); McKinney v. Bd. of Trustees of Md. Comm. Coll., 955
F.2d 924, 926 & n.3 (4th Cir. 1992).6 The most recent of these decisions, the Fourth
Circuit’s decision in McKinney, is now more than fifteen years old. Conversely, the
two courts among the circuit courts to have adopted the last-served defendant rule
have done so far more recently: the Eighth Circuit in 2001, and the Sixth Circuit in
1999. Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 755 (8th Cir.
2001); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir.
1999).
Second, we are convinced that both common sense and considerations of
equity favor the last-served defendant rule. The first-served rule has been criticized
by other courts as being inequitable to later-served defendants who, through no fault
of their own,7 might, by virtue of the first-served rule, lose their statutory right to
6
It is worth noting that none of these cases is procedurally identical to the instant
case: in Brown, a newly added defendant—four years after the suit had commenced in state
court—was denied the right to remove under the first-served defendant rule; in McKinney, the
court permitted a later-served defendant thirty days in which to join a notice of removal filed
within thirty days of the first-served defendant; in Getty Oil, the court held that all then-served
defendants have to join a notice of appeal filed within thirty days of the first defendant.
7
For example, in this case, there is no indication as to why service was delayed on
Johnson & Johnson for more than a month after filing of this action. Of course, Johnson &
Johnson, as the parent company, likely knew about the lawsuit prior to its receipt of service. But
the Supreme Court has rejected using simple notice or constructive service to start the clock on
§ 1446(b) time window. See Murphy Bros., 526 U.S. at 347-48, 119 S. Ct. at 1325.
9
seek removal. Both the Eighth and Sixth Circuits endorsed the last-served
defendant rule, at least in part, for equitable reasons. See Marano, 254 F.3d at 755
(“[The Fifth Circuit] 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. Later-served defendants would not be afforded the
opportunity to attempt to persuade their co-defendants to join a notice of removal if
more than thirty days had passed since the first defendant was served.”); Brierly,
184 F.3d at 533 (noting that “as a matter of fairness to later-served defendants” it
endorsed the last-served rule).8
Third, the Sixth Circuit recognized that the first-served rule requires reading
first-served defendant into the statute, whereas the statute, as written, could
reasonably be read to permit each defendant a right to remove within thirty days of
service on the individual defendant: “as a matter of statutory construction, holding
that the time for removal commences for all purposes upon service of the first
defendant would require us to insert ‘first’ before ‘defendant’ into the language of
the statute. We are naturally reluctant to read additional words into the statute,
8
The Fourth Circuit in McKinney relied in part on statutory changes—which made
Rule 11 applicable to petitions for removal—to permit defendants a full thirty days in which to
decide whether to join an otherwise timely notice of removal. If later-served defendants did not
have the full thirty days to decide whether to join a petition for removal, it would be harsh to
subject them to Rule 11 sanctions. See McKinney, 955 F.2d at 928.
10
however.” Brierly, 184 F.3d at 533.
Fourth, we are unpersuaded by the rationale behind the first-served rule.
Those courts that have endorsed the first-served rule have generally done so for two
reasons: (1) it is perceived as more consistent with the unanimity rule for notices of
removal; and, (2) courts are to narrowly construe the removal statute and federal
jurisdiction. See, e.g., Brown, 792 F.2d at 482.
The unanimity rule requires that all defendants consent to and join a notice of
removal in order for it to be effective. See Russell Corp. v. Am. Home Assur. Co.,
264 F.3d 1040, 1050 (11th Cir. 2001). The last-served rule is not inconsistent with
the rule of unanimity. 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. The unanimity rule
alone does not command that a first-served defendant’s failure to seek removal
necessarily waives an unserved defendant’s right to seek removal; it only requires
that the later-served defendant receive the consent of all then-served defendants at
the time he files his notice of removal.
Although it is true that we have stated previously that “all uncertainties as to
removal jurisdiction are to be resolved in favor of remand,” Russell Corp., 264 F.3d
at 1050, we do not find that a strict construction of the removal statute necessarily
11
compels us to endorse the first-served defendant rule in light of the Supreme Court’s
decision in Murphy Brothers, 526 U.S. at 347-48, 119 S. Ct. at 1325. See Marano,
254 F.3d at 756 (noting that the Murphy Brothers Court appeared to relax its strict
constructionist approach to interpreting the removal statute); see also Murphy Bros.,
526 U.S. at 357, 119 S. Ct. at 1330 (Rehnquist, C.J., dissenting) (stating that the
Murphy Brothers decision “departs from this Court’s practice of strictly construing
removal and similar jurisdictional statutes”).
Finally, we agree with the Eighth Circuit in Marano that the Supreme Court’s
decision in Murphy Brothers supports endorsing the last-served rule. The court
observed:
The [Supreme] Court [in Murphy Brothers] held that formal
process is required, noting the difference between mere notice to a
defendant and official service of process: “An individual or entity
named as a defendant is not obliged to engage in litigation unless
notified of the action, and brought under a court’s authority, by formal
process.” Thus, a defendant is “required to take action” as a
defendant—that is, bound by the thirty-day limit on removal—“only
upon service of a summons or other authority-asserting measure stating
the time within which the party served must appear and defend.” The
Court essentially acknowledged the significance of formal service to
the judicial process, most notably the importance of service in the
context of the time limits on removal . . . .
Marano, 254 F.3d at 756 (internal citations omitted). Accordingly, the Eighth
Circuit concluded that the Supreme Court, based on its reasoning in Murphy
12
Brothers, would endorse the last-served defendant rule because that rule recognizes
that individual defendants are not required to take action—whether seeking removal
or otherwise responding to another defendant’s notice of removal—until they are
properly served, “regardless of when—or if—previously served defendants had
filed such notices.” Id. In other words, Murphy Brothers supports the last-served
defendant rule because a defendant has no obligation to participate in any removal
procedure prior to his receipt of formal service of judicial process. Contrary to
Murphy Brothers, the first-served defendant rule would obligate a defendant to seek
removal prior to his receipt of formal process bringing him under the court’s
jurisdiction.
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 decisions by the courts of appeals, as
well as the majority of the district courts in this Circuit,9 recognize that equity
9
See, e.g. General Pump & Well, Inc. v. Laibe Supply Corp., No. CV607-30, 2007
WL 3238721, at *2 (S.D. Ga. Oct. 31, 2007) (adopting last-served defendant rule); C.L.B. v.
Frye, 469 F. Supp. 2d 1115, 1119-20 (M.D. Fla. 2006) (following last-served defendant rule);
Adams v. Charter Commc’ns. VII, LLC, 356 F. Supp. 2d 1268, 1273 (M.D. Ala. 2005) (adopting
first-served defendant rule); Kimbrough v. City of Cocoa, No. 05CV471ORL31KRS, 2005 WL
1126651, *5 (M.D. Fla. May 5, 2005) (adopting last-served defendant rule); Fitzgerald v.
Bestway Servs., Inc., 284 F. Supp. 2d 1311 (N.D. Ala. 2003) (following last-served rule for later-
added defendants); Collings v. E-Z Serve Convenience Stores, Inc., 936 F. Supp. 892, 895 (N.D.
Fla. 1996) (same). But see Kuhn v. Brunswick Corp., 871 F. Supp. 1444, 1447 (N.D. Ga. 1994)
(following first-served rule).
13
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, in which the Supreme Court held that a defendant has no
obligation to engage in litigation prior to his receipt of formal service of process.
Murphy Brothers also 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. Indeed, under the facts of this
case, the first-served defendant rule would require us to find that the three earlier-
served defendants waived Johnson & Johnson’s right to seek removal, before it was
obligated to participate in the lawsuit under Murphy Brothers. We cannot sanction
such result, and therefore conclude that the last-served defendant rule is in keeping
with Murphy Brothers, is consistent with the trend of case law, and is the most
reasonable interpretation of §1446(b).10
10
Appellant also argues that the motions to dismiss filed in state court by defendants
Alza and Janssen constituted a waiver of their right to remove and also barred their subsequent
joinder of Johnson & Johnson’s removal petition. We recently held “that the removing
defendant did not waive its right of removal by filing a motion to dismiss the plaintiff’s
complaint while the case was still pending in state court.” Cogdell v. Wyeth, 366 F.3d 1245,
1249 (11th Cir. 2004). On the basis of our controlling opinion in Cogdell, we reject appellant’s
14
IV. CONCLUSION
We hereby adopt the last-served defendant rule, which permits each
defendant, upon formal service of process, thirty days to file a notice of removal
pursuant to §1446(b). Accordingly, the district court’s denial of appellant’s motion
to remand the action to state court is
AFFIRMED.11
argument.
11
The rest of appellant’s arguments on appeal are addressed in a separate,
unpublished appendix to this decision, which affirms in part, and reverses in part the dismissal
with prejudice of the appellant’s complaint.
15