Removal Period Under 28 U.S.C. § 1446 Begins To Run Upon Service Of Complaint U.S. Supreme Court Holds
CAFA (Class Action Fairness Act of 2005) was enacted to greatly expand access to federal courts in class actions. In class actions, defendants often benefit if they can remove the case to federal court. While CAFA contains special rules concern removal and appealability of orders granting or denying motions for remand, removal of cases to federal court generally is governed by 28 U.S.C. § 1446.
Generally, a defendant must remove an action to federal court within 30 days of receipt “by service or otherwise” of the “initial pleading.” Prior to United States Supreme Court opinion in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322 (1999), federal courts were divided on whether receipt of a courtesy copy of the complaint started the 30-day removal period. Compare Valle Trade, Inc. v. Plastic Specialties & Technologies, Inc., 880 F. Supp. 499, 500 (S.D. Tex. 1995) (“Receipt of a ‘courtesy copy’ of the petition constitutes sufficient notice under the statute.”); Uhles v. F.W. Woolworth Co., 715 F. Supp. 297, 297-98 (C.D. Cal. 1989) (30-day removal period begins upon receipt of initial pleadings by any means, “irrespective of the technicalities of state service of process laws”), with Apache Nitrogen Products, Inc. v. Harbor Ins. Co., 145 F.R.D. 674, 680 (D. Ariz. 1993) (holding defendant must be served to commence removal period).
The United States Supreme Court finally resolved the question in Murphy Brothers v. Michetti Pipe, holding that receipt of a “courtesy copy” of a complaint is not sufficient to trigger the time period for removal. Rather, “a named defendant’s time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, “through service or otherwise,” after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.” 526 U.S. at 347-48.