Class Action Defense Issues: 30 Day Time Limit On Removal to Federal Court - 28 U.S.C. § 1446
28 U.S.C. § 1446 - 30 day Time Limit
Class action defendants often benefit if they can remove the case to federal court if possible. CAFA (Class Action Fairness Act of 2005) was enacted to greatly expand access to federal courts in class action cases. Removal of cases to federal court generally is governed by 28 U.S.C. §1446. CAFA is discussed in a separate article.
The procedure for removal is set forth in 28 U.S.C. § 1446. As a general rule the defendant must remove the case to federal court within 30 days of receipt of the complaint or a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, 28 U.S.C. § 1446(b). However, if the basis of removal is diversity jurisdiction, then the matter may not be removed more than one year after the lawsuit was filed. Id. Section 1446 provides in part:
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) 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 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.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
30-day Limit on Removal
Section 1446(b) requires removal within 30 days of receipt by service or otherwise of the initial pleading, or of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
The statute provides two thirty-day windows during which a case may be removed-during the first thirty days after the defendant receives the initial pleading or during the first thirty days after the defendant receives a paper from which it may first be ascertained that the case is one which is or has become removable if the case stated by the initial pleading is not removable.
Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 692 (9th Cir. 2005).
This 30-day time period is mandatory but not jurisdictional. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980); Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1046 (2d Cir. 1991). As the Second Circuit explained in Somlyo at page 1046:
Under 28 U.S.C. § 1446(b), the petitioning party must file a notice of removal with the district court within thirty days after receipt of the initial pleading. See 28 U.S.C. § 1446(b) (1988). While the statutory time limit is mandatory, it is merely a formal and modal requirement and is not jurisdictional. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir.1980). Nevertheless, absent a finding of waiver or estoppel, federal courts rigorously enforce the statute's thirty-day filing requirement. See, e.g., Nicola Prods. Corp. v. Showart Kitchens, Inc., 682 F. Supp. 171, 173 (E.D. N.Y. 1988); Martropico Compania Naviera S.A. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 428 F. Supp. 1035, 1037 (S.D. N.Y. 1977).
As a practical matter, this means that a plaintiffs failure to file a motion to remand the matter to state court on the ground that the removal itself was untimely may be deemed a waiver of the 30-day requirement in Section 1446(b). But see, Phoenix Global Ventures, LLC v. Phoenix Hotel Assoc., Ltd., 422 F.3d 72 (2d Cir. 2005) (affirming remand of action to state court even though motion was untimely because plaintiffs counsel had made good faith efforts to file motion timely but the electronic case filing system rejected the motion).
We do not here discuss ways in which the "other paper" language may be used to restart the clock for removal purposes. For present purposes, the author simply reminds counsel that a complaint not removable on its face becomes removable in light of some other paper, and so defense counsel may be careful that a new 30-day window does not open and close before filing a notice of removal.
Commencement of the 30-day Limit on Removal
As noted above, the 30-day time limit set forth in Section 1446(b) commences upon receipt by service or otherwise of the initial pleading. (This article does not discuss what otherwise constitutes an initial pleading under Section 1446(b).) Does this mean that a courtesy copy of the complaint starts the clock?
Until recently the answer was unclear. Some courts held that by the plain language of § 1446(b), formal service of process is not required to trigger commencement of the removal period. Receipt of a courtesy copy of the petition constitutes sufficient notice under the statute. Valle Trade, Inc. v. Plastic Specialties & Technologies, Inc., 880 F. Supp. 499, 500 (S.D. Tex. 1995). See also, Uhles v. F.W. Woolworth Co., 715 F.Supp. 297, 297-98 (C.D. Cal. 1989) (30-day removal period begins upon receipt of initial pleadings by any means, irrespective of the technicalities of state service of process laws). Other courts held that the 30-day period did not commence until the complaint was served. See e.g., Apache Nitrogen Products, Inc. v. Harbor Ins. Co., 145 F.R.D. 674, 680 (D. Ariz. 1993) (holding defendant must be served to commence removal period).
The United States Supreme Court finally resolved the question in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322 (1999). The Supreme Court held that receipt of a courtesy copy of a complaint is not sufficient to trigger the time period for removal. Rather, the defendant must be properly served for the removal period to commence.