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You Got Served ... Later? 3rd Cir. Interprets the Removal Statute

By Robyn Hagan Cain on October 28, 2011 | Last updated on March 21, 2019

To remove a lawsuit from state court to federal court under the federal removal statute, 28 U.S.C. 1446 requires a defendant to file a notice of removal within 30 days of being served. The Circuit Courts of Appeals are divided regarding how the removal statute should be applied when multiple defendants are served on different days.

The Fourth and Fifth Circuits subscribe to the first-served rule. The Sixth, Eighth, Ninth, and Eleventh Circuits have chosen the later-served rule, giving each defendant 30 days after that defendant is served to remove the case to federal court. The remaining circuits have been silent on the matter.

The Third Circuit Court of Appeals recently weighed in on the removal period in Delalla v. Hanover Ins, and sided with the bulk of the circuits, selecting the later-served rule.

Product Partners, LLP sued Nicole Delalla and her company, NMD Marketing, in a trademark dispute over a line of nutritional supplements sold under the name "Slim 90."

Hanover Insurance, Delalla's insurer, retained Joseph Oberlies, of Connor Weber & Oberlies, to represent Delalla and NMD. Oberlies negotiated a settlement with Slim 90, but Delalla and NMD later sued Hanover, Connor Weber & Oberlies, and Oberlies, individually, when Oberlies was unable to satisfactorily explain why the settlement was in Delalla's interest.

More than 30 days after Hanover was served, but less than 30 days after the law firm defendants were served, the law firm filed a notice of removal. Although Hanover had not filed a notice of removal within 30 days of being served, it joined in the firm's notice of removal. The case was removed to federal court.

Delalla later appealed, arguing that the firm's notice of removal was not timely filed under the 30-day requirement in 28 U.S.C. 1446.

The Third Circuit Court of Appeals, however, ruled that the most equitable interpretation of the federal removal statute necessitates the later-served rule, because it affords each defendant a full 30 days to file a notice of removal.

Do you agree, or should the Third Circuit Court of Appeals have bucked popular appellate opinion and selected the first-served interpretation of 28 U.S.C. 1446?

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