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United States District Court, W.D. New York

February 14, 2004.


The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge

Piacente filed this Title IX action in the New York State Supreme Court, County of Erie, on July 25, 2003.*fn2 Defendant Research Foundation of State University of New York ("Research Foundation") removed the case September 10. All other defendants consented to such removal.*fn3 Piacente filed a motion to remand on October 10. This matter was argued and submitted on December 12. For the reasons set forth below, Piacente's motion will be denied.

Defendant Spengler was served on August 8. Defendants Research Foundation, UB Foundation Activities, Inc. and State University of New York at Buffalo were all served on August 11. Defendant Richard Bankert was served on September 3. As noted above, Research Foundation removed this action on September 10 — more than thirty days after Spengler had been served but within thirty days after Research Foundation itself had been served. Piacente contends that Research Foundation's Notice of Removal is deficient because, pursuant to section 1446(b),*fn4 it was untimely inasmuch as it was made more than thirty days after Spengler had been served. Inasmuch as the Court is aware of no procedural defects that would require remand, it must address an issue that has caused a split amongst federal courts — whether the time for removal is determined by the date of service*fn5 upon the first-served defendant ("the FSD rule") or the date of service upon the removing defendant ("the RD rule").*fn6 The FSD rule has been adopted by the Fifth Circuit Court of Appeals,*fn7 whereas the RD rule*fn8 has been adopted by the Sixth and Eighth Circuit Courts of Appeal.*fn9 A modified version of the FSD rule has been adopted by the Fourth Circuit Court of Appeals.*fn10 Piacente correctly notes that this issue has not been directly addressed by either the U.S. Supreme Court or the Second Circuit Court of Appeals.*fn11

  Before reviewing section 1446, it is important to note several general principles that govern removal. This Court must "construe the removal statute narrowly, resolving any doubts against removability."*fn12 Moreover, the removing party must demonstrate a jurisdictional basis for removal as well as "the necessary compliance with the statutory removal requirements."*fn13

 The RD Rule is Supported by the Text of Section 1446:

  This Court first turns to section 1446(b), which provides in relevant part: "The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ***." 28 U.S.C. § 1446(b) (emphasis added).

 Several courts note that section 1446(b) is ambiguous as to whether the time for removal in a multiple defendant case is calculated based on the date of service on the FSD or the RD. Although somewhat ambiguous, the better construction of section 1446(b) — which does less violence to section 1446(b) as drafted — suggests that the RD rule is the proper interpretation.

  There are several statutory reasons to adopt the RD rule. First, in order to support the FSD rule, section 1446(b) would have to be interpreted so as to insert the word "first" before "defendant." This construction (i.e., "the [first] defendant") is not supported by the text of section 1446(b).*fn14 In order to support the RD rule on the other hand, one must only read section 1446(b) in context such that "the defendant" is interpreted as "the defendant [who has filed a notice of removal]" — i.e., the RD. This construction is supported by the text of section 1446(b) — i.e., "The notice of removal *** shall be filed within thirty days after receipt by the defendant" [emphasis added] — and requires no additional words to be inserted. 28 U.S.C. § 1446(b).*fn15 Second, courts that find section 1446(b) to be ambiguous do so based on the premise that it "contemplates only one defendant and thus does not answer the question of how to calculate the timing for removal in the event that multiple defendants are served at different times, one or more of them outside the original 30-day period."*fn16 This premise, however, is wrong. Section 1446(b)'s singular use of "the defendant" contemplates only one defendant because it is referring to the RD, the defendant who filed a notice of removal — other served defendants may join in or consent to the RD's notice of removal. This interpretation is supported by section 1446(a), which provides in relevant part:

"A defendant or defendants desiring to remove any civil action *** from a State court shall file in the district court *** a notice of removal *** containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." (Emphasis added).
Accordingly, section 1446(a) contemplates removal by a "defendant or defendants." 28 U.S.C. § 1446(a) (emphasis added). In other words, section 1446(a) demonstrates that Congress specifically contemplated cases involving multiple defendants. Rather than assuming that Congress forgot about the possibility of multiple defendants when it moved from subsection (a) to subsection (b), it is more reasonable to assume that Congress contemplated that a defendant would file a notice of removal that could be joined in or consented to by other defendants.*fn17 Congress, therefore, must have contemplated that the time for the filing of a notice of removal would be calculated based on the date of service of process upon the defendant who filed the notice of removal — i.e., the RD. Accordingly, the text of subsections 1446(a) & (b) implicitly supports adoption of the RD rule.

  Third, the RD rule respects the "rule of unanimity"*fn18 because there is a difference between a right to remove and a right to consent to removal — even though the practical distinction between the two may be minimal. Accordingly, a FSD defendant who fails to timely remove an action may nonetheless consent to timely removal by a later-served defendant — the RD.*fn19 Fourth, the Supreme Court's decision in Murphy Bros., supra note 5, suggests that the RD rule is the proper interpretation of section 1446(b).*fn20 Indeed, the Eighth Circuit Court of Appeals stated that it found


"neither [the FSD rule nor the RD rule] particularly compelling, as both are susceptible to abuse and have potential to create inequities. We are convinced, however, that the legal landscape in this area has been clarified, and perhaps the definitive answer portended, by the Supreme Court's decision in Murphy Bros, [supra note 5]. *** We conclude that, if faced with the issue before us today, the [Supreme] Court would allow each defendant thirty days after receiving service within which to file a notice of removal, regardless of when — or if — previously served defendants had filed such notices."*fn21
Likewise, this Court finds that, logically extended, Murphy Bros, favors adoption of the RD rule.*fn22 As noted above, Murphy Bros, held that the clock for removal does not start until a defendant is served with process.*fn23 Indeed, this Court previously held that, under Murphy Bros., "the time for removal commences when service is completed and jurisdiction over the defendant has been obtained."*fn24 Although Murphy Bros, only involved a single defendant, its holding nonetheless applies to the multiple defendant context.*fn25 In reaching its holding, the Murphy Bros. Court noted that it "read Congress' provisions for removal in light of a bedrock principle: An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process."*fn26 Consequently, if a person or entity becomes a party only upon service of process, it logically follows that a person or entity may only be required to "take action" by filing a notice of removal once he/she or it has become a party to the litigation via formal service of process. Inasmuch as Murphy Bros. has thus altered the analysis with respect to the time for removal in multiple defendant cases, pre-Murphy Bros. cases are no longer sound authority.*fn27

  Fifth, Congress could have drafted section 1446(b) in a manner that would have expressly calculated the time for removal based on the date of service of the FSD.*fn28 The fact that it did not draft such a provision suggests that Congress did not intend to codify a FSD rule.*fn29 Read in context, subsections 1446(a) & (b) undermine an attempt to apply this statutory construction argument to the RD rule because such context demonstrates congressional intent to codify a RD rule. Accordingly, this Court finds that Congress was implicitly referring to the RD when it used the phrase "the defendant" in section 1446(b).

  Moreover, the RD rule is the modern trend. Although the text of section 1446 is determinative, it is important to note that the majority of post-Murphy Bros. authorities have adopted the RD rule.*fn30 Indeed, although many courts have characterized the FSD rule as the majority rule and the RD rule as the minority rule, the modern trend favors the RD rule. In light of this Court's finding that the text of section 1446 addresses the timing for removal in multiple defendant cases, it is unnecessary to engage in a policy analysis with respect to section 1446(b). Nonetheless, it is worth noting that the majority of post-Murphy Bros. decisions — which have weighed the policy reasons — have adopted the RD rule.*fn31 Consequently, the weight of authorities supports this Court's decision to adopt the RD rule when interpreting section 1446(b). Accordingly, it is hereby ORDERED that plaintiff's motion to remand is denied.

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