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That’s our rule and we’re sticking to it

It’s official.

When it comes to the time limit for removal of a multiple-defendant case from state to federal court, the 4th U.S. Circuit Court of Appeals is sticking with the “McKinney Intermediate Rule.”

The McKinney rule requires a notice of removal under 28 U.S.C. § 1446(b) to be filed within the first-served defendant’s 30-day window, but gives later-served defendants 30 days from the date they were served to join that notice of removal.

Early last year, a 4th Circuit panel backed away from the McKinney rule in favor of the “last-served rule,” which gives each defendant, after service, 30 days to file a notice of removal.

But the en banc court, on rehearing of Barbour v. Int’l Union, says it will apply the McKinney rule, as it has for “close to 19 years.”

When a defendant wants to remove a case filed in state court to federal court, the defendant has a limited window of time under federal law. How that time limit is measured, when there are multiple defendants, has been a subject of debate in federal courts for some years now.

In a nutshell, there are three rules.

The “first-served rule” pegs everyone to the time period for the first-served defendant, so that every defendant must join the notice of removal within the first defendant’s 30-day time frame. The “last-served rule” allows each defendant, upon service of process, 30 days to file a notice of removal and says earlier-served defendants may join in the later notices of removal.

In-between is the 4th Circuit’s McKinney, or “intermediate rule.” The McKinney rule requires a notice of removal to be filed within the first-served defendant’s 30-day window, but gives later-served defendants 30 days from the date they were served to join the notice of removal.

The time calculation is of special interest to Virginia litigators who want to get a state-filed case into federal court in order to take a ride on the rocket docket to summary judgment.

Writing for the majority in a 68-page opinion, Senior Circuit Judge Clyde H. Hamilton said the McKinney rule is the “most logical and faithful interpretation of the operation of § 1446(b).” Judge G. Steven Agee wrote a dissent joined by four other judges, which said the last-served defendant rule represented the more accurate and appropriate reading of the terms of 28 U.S.C. § 446(b).

By Deborah Elkins

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