Litigators should be aware of recent noteworthy amendments to the federal removal statutes. 28 U.S.C. §§ 1441, 1446. The removal amendments, brought about by the Federal Courts Jurisdiction and Venue Clarification Act of 2011, PL 112-63, December 7, 2011, 125 Stat 758, apply to all actions "commenced" in state court on or after January 6, 2012. The first change resolves a circuit split over the time for removal in a case involving multiple defendants, where each defendant is not served at the same time. The second change strips federal district courts of removal jurisdiction they previously possessed over state law claims not within the court's original or supplemental jurisdiction. These changes present litigators with significant tactical choices and opportunities.
Adopting the "Later-Served Defendant" Rule for Removal
Under the Act, when multiple defendants are sued in state court, each defendant now has 30 days to file a notice of removal to federal district court, starting from the date that the defendant itself was served, not from the date the first defendant was served. Before the Act, there was a deep circuit split between circuits adopting this so-called "later-served" rule and those adopting the "first-served" rule, which required any defendant seeking removal to file the notice of removal within 30 days of the date the first defendant is served. Compare Delalla v. Hanover Ins., 660 F.3d 180, 182 (3d Cir. 2011) (adopting "later-served" rule) with Barbour v. Int'l Union, 640 F.3d 599, 610 (4th Cir. 2011) (adopting "first-served" rule).
Defendants seeking removal to federal court under 28 U.S.C. § 1441 must do so according to the procedures in 28 U.S.C. § 1446. Prior to the amendment, Section 1446(a)...
