1A James Wm. Moore, Moore's Federal Practice P 0.168[3.-5-5], at 586-87 (italics in original) (footnotes omitted).
Thus, by the logic of the first-served rule, the fact that thirty days elapsed before defendant City petitioned for removal would bar a similar petition by defendant Lake, even though Lake's motion may be within thirty days of his receipt of the initial pleading. Apparently, even if Lake did not receive a copy of the pleading until after City's clock had run, he would still be precluded from removing. See, e.g., Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986). The first-served rule has been adopted by the clear majority of federal courts. See Garside by Garside v. Osco Drug, Inc., 702 F. Supp. 19, 21 n.4 (D. Mass. 1988) (acknowledging preeminence of first-served rule and listing cases in accord).
The contrary, minority position, or the "last-served" rule in the court's terminology, is stated in the Wright treatise:
Some district courts have held that failure of the first defendant served to file a petition for removal within thirty days of service will prevent all subsequently served defendants from removing the action. Since one defendant always can preclude removal by refusing to join in the removal petition, this result is not unfair when all of the defendants are served simultaneously. However, when some of the defendants are served after the first defendant served has waived the removal right by not exercising it within the statutory period, the subsequently served defendants are deprived of the opportunity to persuade the first defendant to join in the removal petition.
14A Wright § 3732, at 531-32 (footnotes omitted).
Thus the last-served rule draws a distinction between a defendant initiating a petition for removal, and consenting to a codefendant's later petition. So although the first-served City has not petitioned for removal within thirty days of its receipt of process, this reasoning would nonetheless permit City to consent to a motion initiated by defendant Lake within thirty days of Lake's receipt of the initial pleading.
The court has examined the four cases it has found unequivocally applying the last-served rule
and found that at least three of them contained equitable factors not present in the matter sub judice. For instance, in Eltman v. Pioneer Communications of America, the last-served defendant was not even added as a party-defendant until approximately one year after the first-served defendant received notice from which removability could be ascertained. 151 F.R.D. 311, 315 (N.D. Ill. 1993). The Northern District of Illinois conceded that the majority, first-served rule might be more appropriate absent these circumstances: "More importantly, even if barring removal by a later-served defendant is justified in certain circumstances, it is unjustified and inequitable when the later-served defendant is not named until the initial thirty-day period has lapsed." Id.
In Garside By Garside v. Osco Drug, Inc., 702 F. Supp. 19, 21 (D. Mass. 1988), the last-served defendant was not added to the complaint until more than four years after the first-served defendants. Additionally, the party seeking remand back to state court in the Garside case was the last-served defendant, not the plaintiff as in the usual case, id. at 22, and the case at bar. The last-served defendant filed the petition for removal within thirty days after it received notice. The case was then randomly assigned to a district judge. The last-served defendant subsequently moved for remand, contending that its own petition was untimely. The court apparently suspected that the last-served defendant, dissatisfied with the district judge assigned the case, was engaging in forum-shopping. Id. It is clear these peculiar circumstances informed the district court's decision to apply the minority rule: "The result reached by following the Wright and Miller approach [last-served rule] is particularly compelling where it is the removing defendant who is seeking a remand." Id.
In the latest case endorsing the last-served rule, the last-served defendant was named in the original complaint, but received no notice until seventeen months after the first defendant was served. Brierly v. Alusuisse Flexible Packaging, Inc., 913 F. Supp. 517, 519 (E.D. Ky. 1996). And unlike the instant case, the last-served defendant was represented by separate counsel from the first-served. See id. at 518 (appearances listing shows last-served defendant Ellison's counsel different from counsel representing Alusuisse Flexible Packaging). In fact, separate counsel represented the first- and last-served defendants in Eltman, see 151 F.R.D. at 313 (describing how last-served defendant's attorney obtained consents from other defendant's attorneys), and Garside, see 702 F. Supp. at 20 (other defendants taking no position on remand motion).
The significance of both defendants in this matter being represented by the same counsel is that in reality, the primary advisor and decision-maker for both Lake and City regarding whether to select the federal or state forum had a full thirty days to contemplate the choice. Since both City and Lake were originally named in the summons with notice, it is somewhat disingenuous to argue that Lake was deprived of his thirty day window for removal -- his counsel was aware Lake was a party to the action and had the benefit of the full thirty days.
Of the cases applying the last-served rule, Ford v. New United Motors Manufacturing, 857 F. Supp. 707 (N.D. Cal. 1994), is the closest one approximating the relevant facts of this matter. The first-served defendant, defendant 1, was represented by one firm, and two subsequently served defendants, defendants 2 and 3, were represented by another. See id. at 707 (appearances); id. at 708 (dates of service). Defendant 1 did not file a timely removal petition. Defendant 3 filed one within thirty days of his receipt of the initial pleading, but not within thirty days of defendant 1's receipt or within thirty days of defendant 2's receipt. See id. at 708 (defendant 1 served August 5, defendant 2 served August 11, defendant 3 served August 16, defendant 3 removes September 15). All defendants were named in the complaint served on defendant 1 on August 5.
Inasmuch as Ford v. New United Motors is the only precedent applying the last-served rule in circumstances such as those present in the immediate matter, this court respectfully disagrees with it. As stated by Professor Wright and the courts applying it, the last-served rule is an equitable doctrine. See, e.g., Eltman, 151 F.R.D. at 317 (first-served rule inequitable under circumstances). When two or more codefendants share the same firm or attorney and are all originally named in the complaint or initial pleading, no equitable consideration compels allowing counsel to use the last-served rule to ponder the removal decision for more than thirty days.
The potential for manipulative timing of service in multidefendant cases is an equitable consideration that could warrant application of the last-served rule. See Ford, 857 F. Supp. at 710. However, there appears to be no such subterfuge on the part of plaintiff in this case, and if there was the suggestion of such a scheme in Ford, that would partially explain its holding. Plaintiff in this case represented at oral argument that defendant Lake's Arizona address was unknown to him, and that before the removal petition was filed, plaintiff had initiated a proceeding in Fulton Supreme Court to compel the disclosure of Lake's current address. Plaintiff's eagerness to perfect service upon defendant Lake belies the idea that simultaneous service was avoided purposefully.
The equities that make the last-served rule desirable, while present in Garside, Eltman, and Brierly are not discernable here. This court hence opts to follow the first-served rule, which is not only the approach applied by the majority of federal courts generally, e.g., Kuhn v. Brunswick Corp., 871 F. Supp. 1444, 1447 (N.D. Ga. 1994), but is also the majority rule applied in the district courts in New York State, e.g., Black v. Moody, 896 F. Supp. 157, 158 (S.D.N.Y. 1995) and cases cited therein. In deciding that both City's and Lake's time for removal expired before a petition was filed in the instant case, the court does not wish to close the door to this line of argument in future cases displaying the characteristics identified in Eltman and Garside as warranting application of the minority, last-served rule.
D. Costs and Fees
Plaintiff also moves for the actual costs and reasonable attorney's fees incurred in making this successful remand motion, as permitted 28 U.S.C. § 1447(c). However, the use of the permissive "may" in that statute reflects that the award of costs and fees is within the court's discretion. As the preceding analysis demonstrates, there were many open questions involved in this motion, and defendants' removal petition was not without persuasive support. The court thus denies the motion for costs, expenses, and fees. See Bradley Industrial Park v. Commissioner of Educ., 915 F. Supp. 543, 546 & n.2 (N.D.N.Y. 1996) (even when there has been procedural defect, court has discretion to refuse costs and fees).
Plaintiff's motion to remand this action back to state court is GRANTED. It is therefore ORDERED that this case be remanded to the New York State Supreme Court for the County of Fulton.
Plaintiff's motion for costs, expenses, and attorney's fees incurred in bringing this remand motion is DENIED.
The court compliments both attorneys for their professional argument of this interesting motion.
It is So Ordered.
Dated: June 24, 1996
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE