WHEN DOES A DEFENDANT’S TIME FOR REMOVAL TO FEDERAL COURT BEGIN TO RUN?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).

This case addresses the following issue:

When does a Defendant’s time for removal begin to run?

This case asked the Court to determine when a defendant’s thirty-day time limit for removal began to run—upon service of process or upon actual notice of the lawsuit? Id. at 347. The Court determined that only service of process can bring a defendant “under a court’s authority” and obligate the defendant to engage in the litigation. Id. at 347-48. The Court read the removal statute in conjunction with this requirement of service, and decided that a defendant’s time to decide about removing an action begins when the defendant has both a copy of the initial pleading and has been formally served a summons. Id. at 356.

In this case, the Plaintiff company sued the Defendant company for breach of contract in Alabama state court. Id. at 348. The Plaintiff faxed a copy of the pleading to Defendant’s vice president, which all parties agree the vice president received and understood to be a filed lawsuit. Id. However, the Defendant was not formally served until two weeks later. Id. Thirty days after being served, the Defendant attempted to remove the case to federal court. Id. The Plaintiff argued that Defendant was too late, because the date that the faxed pleading was received triggered the thirty-day time limit, not the date of service. Id. at 348-49.

The Court began by noting the importance of service of process, both historically and today. Id. at 350. This requirement is so strong that “in absence of service of process, a court ordinarily may not exercise power over a [defendant].” Id. This power is so great that the Court had approved dismissing an action where service of process is not achieved in a timely fashion. Id.

Against this backdrop, the Court read the removal statute’s language of “the receipt by the defendant, through service of otherwise, of a copy of the initial pleading.” Id. at 349. The Court determined that the longstanding role of service of process could not be uprooted by the term “or otherwise.” Id. at 354. Instead, the “receipt rule” offered by the Plaintiff was an improper attempt to juke the recognized purpose of service of process and shorten the time limit placed on a defendant by the removal statute. Id. at 356. The Court concluded by noting that if the lack of service of process upon a defendant was sufficient to altogether end a case, it certainly was important enough to be considered the starting point of the thirty-day time limit. Id.