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Essenthier v. Wolf Investment Corporation #1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


November 16, 2010

CARL ESSENTHIER AND VIRGINIA ESSENTHIER INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF CHRISTIAN F. ESSENTHIER, PLAINTIFFS,
v.
WOLF INVESTMENT CORPORATION #1, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Rufe, J.

MEMORANDUM OPINION

Before this Court is Plaintiffs' Motion to Remand this action to the Court of Common Pleas of Philadelphia County. For the reasons stated below, Plaintiffs' motion is denied.

I. BACKGROUND

Plaintiffs filed this action in the Court of Common Pleas of Philadelphia County to recover damages for injuries allegedly sustained when their minor son tripped and fell while traversing Defendants' premises.*fn1 Plaintiffs named the following Defendants: Wolf Investment Corporations numbered one through eight ("Wolf"), the City of Philadelphia, the National Railroad Passenger Corporation ("Amtrak"), and the Southeastern Pennsylvania Transit Authority. Every Defendant except Wolf received service of the complaint on July 21, 2010; Wolf received service one day earlier, on July 20.*fn2 With the written consent of all Defendants, Amtrak filed a notice of removal on August 20, 2010-thirty days after it received service, but thirty-one days after Wolf received service. Amtrak's Notice of Removal asserts that this Court has jurisdiction under 28 U.S.C. § 1331 because Amtrak is a corporation created by Congress and the U.S. Government owns more than half of its stock.*fn3

Plaintiffs have moved for remand, arguing that because Wolf itself failed to remove or to consent to removal within thirty days after it received service, Wolf's consent is invalid, and thus Amtrak's Notice of Removal, though filed within 30 days of Amtrak's receipt of service, is defective. Plaintiffs' argument succeeds only if this Court adopts the minority rule that the thirty-day removal period begins to run when the first-served defendant receives service. This Court declines adopt such a rule.

II. DISCUSSION

The statute governing the procedure for removal, 28 U.S.C. § 1446, 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 copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based . . . .*fn4

In addition, each defendant must consent to removal.*fn5

The statute does not specify when, in multiple defendant cases, the thirty-day period begins to run if different defendants receive service at different times, or whether each defendant must consent within their own thirty-day removal period.

Case law reveals two competing rules: the first-served defendant rule and the later-served defendant rule. Under the first-served defendant rule, which Plaintiffs advocate, the thirty-day period begins to run when the first defendant is served.*fn6 Under this rule, the removing defendant must obtain consent of all defendants and file its notice within thirty days of service of the first-served defendant, regardless of when the removing defendant received service. But the later-served defendant rule, which Defendants advocate, "allow[s] 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."*fn7

The weight of authority strongly favors the later-served defendant rule. Of the five Circuit Courts of Appeals to consider the issue, only one has adopted the first-served defendant rule,*fn8 while four have adopted the later-served defendant rule.*fn9 The Third Circuit has not resolved the question.*fn10 Most district courts within this Circuit, including this Court, have opted for the later-served defendant rule.*fn11

The Supreme Court's reasoning in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.*fn12 has contributed to the trend toward adoption of the later-served defendant rule.*fn13 There, the Court held that the thirty-day removal period of Section 1446(b) is triggered by formal service, "but not by mere receipt of the complaint unattended by any formal service."*fn14 In reaching this conclusion, the court invoked the "longstanding tradition" that "[s]ervice of process . . . is fundamental to any procedural imposition on a named defendant,"*fn15 and noted that Congress enacted the current version of Section 1446 to "ensure that the defendant would have access to the complaint before commencement of the removal period."*fn16

The Fourth, Eighth, and Eleventh Circuits relied on the reasoning in Murphy Bros. in selecting the later-served defendant rule.*fn17

Under this view, Murphy Bros. "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."*fn18 But the "first-served defendant rule would obligate a defendant to seek removal prior to his receipt of formal process."*fn19 The Fifth Circuit-the only circuit to apply the first-served defendant rule-has not considered the issue since Murphy Bros. was decided. Moreover, since Murphy Bros., most district courts within the Third Circuit have generally applied the later-served defendant rule.*fn20

Legal and policy rationales undergird each rule. The first-served defendant rule has three primary rationales. First, some courts perceive it as more consistent with the rule of unanimity. Under this view, unanimity is promoted by requiring all served defendants to join in the removal within thirty days.*fn21 Once the first-served defendant's removal period lapses, later-served defendants cannot include the first-served defendant in their petition for removal.*fn22 Second, the first-served defendant rule has found support in the policy and practice of narrowly construing the federal removal statute in favor of remand because of "the restrictive policy of Congress against removal."*fn23 Finally, the rule ensures that the question of forum is settled quickly.*fn24

The Court does not find this reasoning compelling. First, the later-served defendant rule is equally consistent with the rule of unanimity because later-served defendants must still secure the consent of the earlier-served defendants prior to removing.*fn25 Second, by elevating the fundamental importance of service of process, the Supreme Court's reasoning in Murphy Bros. appears to have relaxed the policy of narrowly construing the removal statute in favor of remand, at least with respect to defendants' removal rights.*fn26

Further, under the first-served defendant rule, later-served defendants lose their statutory right to removal through no fault of their own.*fn27 The first-served defendant may have no incentive or viable basis to remove.*fn28 And under the first-served defendant rule, a plaintiff could prevent removal by manipulating the date of service for various defendants. Finally, each defendant has a statutory right of removal, and, under the reasoning of Murphy Bros., this right must not be contingent upon the timing with which the plaintiff elects to serve process on other defendants.*fn29

The strong trend in the courts, the Supreme Court's reasoning in Murphy Bros., and considerations of fairness lead this Court to adopt, as it has in the past,*fn30 the later-served defendant rule. Thus, "even the last-served defendant may remove within thirty (30) days of service, and other defendants may consent to the later-served Defendant's removal even if their own removal periods have expired."*fn31

III. CONCLUSION

Having concluded that the later-served defendant rule applies, this Court finds that Defendant Amtrak had thirty days from the date on which it received service during which to file its notice of removal and obtain the consent of other Defendants. Having so filed, Amtrak's removal was timely. Accordingly, the Court denies Plaintiffs' Motion to Remand.

An appropriate Order follows.


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