The U.S. Court of Appeals for the Second Circuit recently held that a defendant may remove a state court action to federal court before being formally served with process.
A copy of the opinion is available at: http://media.ca1.uscourts.gov/pdf.opinions/13-2543P-01A.pdf
As you may recall, the United States Supreme Court had previously ruled that a defendant is not required to remove until the defendant has been served, but had never clarified whether removal could occur before service.
The Second Circuit analyzed the statutory text of the applicable statute, 28 U.S.C. § 1446(b)(1), as well as its legislative history, concluding that service of process is, with one exception not applicable to the case at bar, not a prerequisite for removal, and a defendant may remove a state court action to federal court at any time after the lawsuit is filed, but before the statutory deadline for removal expires.
Under 28 U.S.C. § 1446(b)(1), a defendant may remove a pending action from state to federal court at two points in time – i.e., the shorter of either within 30 days after receiving the initial pleading or, alternatively, within 30 days after being served with a summons.
Rejecting the plaintiff’s argument that removal is not allowed before a defendant has been served, the Court reasoned that by using the words “within 30 days after,” Congress intended to fix the point in time when a defendant’s ability to remove expires, not prohibit a defendant from removing before having been formally served and the 30-day period begins to run.
Because the defendant in this case was not precluded from removing before receiving service, the Second Circuit affirmed the judgment of the district court.
Ralph T. Wutscher
McGinnis Wutscher LLP
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