The Ninth Circuit’s Split Personality on Deadline for Removal

Professor A. Robert Benjamin of the University of Richmond School of Law runs a blog every federal practitioner should love. The Split Circuits blog is a fine resource on — you guessed it — splits among the federal circuits. In a post earlier this month, Professor Benjamin pointed out a split of authority within the Ninth Circuit on the deadline for removing a state court lawsuit to federal court. Under 28 U.S.C. § 1446(b), the notice of removal must 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

The deadline becomes a thorny issue when multiple defendants are served at different times. Some district courts in the Ninth Circuit hold that the date of the first service is the trigger, others hold that the last date of service controls. Professor Benjamin’s post quotes extensively from Coleman v. Assurant, Inc., 463 F. Supp. 2d 1164 (D. Nev. 2006), which discusses this split.

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