Concept
Multiple Defendants
Removal
Multiple Defendants
A state-court plaintiff who sues several defendants forces the removal statute to answer two questions that a lone defendant never raises: whose agreement must a notice of removal carry, and when does each defendant's time to act run out? Section 1446(b)(2) answers both. Every defendant who has been properly joined and served must join in or consent to a removal under § 1441(a), and each defendant has 30 days from its own receipt or service to file.1 Both answers build on the removal premise: the action must be one the district courts could have heard originally, and it goes to the federal court embracing the place where it is pending.2 The two rules work as a pair. The first ties the defendants' choices together; the second keeps one defendant's calendar from cutting off another's chance to act. Take them in that order, because the clocks matter only once you know whose agreement a notice must carry.
The Unanimity Requirement
A case removed solely under § 1441(a) reaches federal court only if every defendant who has been properly joined and served joins in or consents to the removal.3 A defendant who signs the notice has joined in it, and a defendant who stays out of the filing but tells the court that it agrees has consented. Each served defendant must do one or the other, and silence is neither. The word solely fixes the rule's scope: it governs the ordinary removal resting on § 1441(a) alone, and the limits below show where it narrows or gives way.
The requirement is older than the sentence that now states it. The removal statute authorizes removal by “the defendant or defendants,” and on that language the Supreme Court held in Chicago, Rock Island & Pacific Railway Co. v. Martin that all defendants must agree to remove.4 In 2011, Congress codified that long-standing rule by adding § 1446(b)(2)(A) to the statute.5 The plural carried the argument: a statute that lets “the defendants” remove describes a choice the defense makes together, not a power each defendant holds alone.
The word defendant itself is narrow in these provisions. Federal law, rather than state law, decides who is the plaintiff and who is the defendant for purposes of removal.6 The Supreme Court reads the term to refer only to the party sued by the original plaintiff, which is why a third party cannot remove.7
The reason for asking every defendant lies in what a notice of removal moves. Removal carries the whole civil action, so when one defendant removes, every co-defendant litigates in federal court whether or not it wanted to. A defendant who prefers the state forum would lose it at a co-defendant's initiative if one defendant could act alone. The statute therefore ties the change of forum to the agreement of the defendants it affects, and the words properly joined and served limit that group to defendants actually in the case.
The practical result is a veto in the hands of every served defendant. Suppose a plaintiff sues defendants #1 through #99 in state court for violating 42 U.S.C. § 1983. The claim arises under federal law, yet defendant #99, by refusing to consent, can keep the other ninety-eight in state court.8 Diversity cases show the cost of that veto.
Section 1446(b)(2)(A) can therefore block removal in exactly the cases where the policy behind diversity jurisdiction, avoiding prejudice against out-of-state defendants, would support it.11
Nor can a majority of defendants cure the problem.
The defect concerns how the defendants carried out the removal, not whether the federal court could hear the case. It therefore falls under the rule for any defect other than lack of subject matter jurisdiction: the plaintiff must move to remand within 30 days after the notice of removal is filed. A jurisdictional defect, by contrast, may be raised at any time before final judgment.14
A model notice of removal shows what compliance looks like on paper. Among the statements it contains, the notice recites that all the defendants consent to removal, in its preamble and again in a numbered paragraph.15 Where one defendant files for the group, that recital is how the notice shows the rule has been met; the rule itself requires every properly joined and served defendant to join in or consent.16
The veto has limits, and each comes from the statute's own words.
The first limit follows from the word served. The statute counts only defendants who have been properly joined and served, and a defendant who has not been served need not join.17 Suppose Ardent and Bellweather have been served on a federal claim, while Corbin has not yet learned of the suit. Ardent and Bellweather may remove without Corbin's agreement, because Corbin is not yet among the defendants whose agreement the statute requires.
The second limit covers purely nominal parties, who need not join.18 A party with no real stake in the outcome has no forum preference that the rule needs to protect.
The third limit appears when removal rests on § 1441(c), which brings a federal claim to federal court together with claims the court could not otherwise hear. There, only the defendants involved in the claim that supports removal need join.19 The unrelated claims are those beyond the court's original and supplemental jurisdiction, and the reach of supplemental jurisdiction is governed by § 1367, which Congress enacted in 1990 and which overturned the result in Finley.20 A defendant sued only on the unrelated claims, which the federal court will sever and send back to state court, has nothing at stake in the federal case, so its agreement adds nothing.
The last limit is built into the statute itself. The unanimity rule governs removals made solely under § 1441(a), and the removal statute yields to any Act of Congress that expressly provides otherwise.21 The later discussion of special removal statutes takes those up.
Step three is where exam facts tend to hide the answer. A stem often mentions in passing that one defendant has not yet been served, and that single fact removes a veto that would otherwise block the removal. The usual error runs the other way: letting an out-of-state defendant who fears local prejudice remove alone. The statute offers that defendant no shortcut, and if a served co-defendant refuses, the case stays in state court.
Each Defendant's Own Clock
Section 1446(b)(2)(B) gives each defendant a removal deadline of its own: 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1).23 Paragraph (1) supplies the measure, 30 days after the defendant receives the initial pleading through service or otherwise, or 30 days after service of the summons if the pleading has already been filed in court and need not be served, whichever is shorter; paragraph (B) applies that measure to each defendant separately.24
Defendants are rarely served on the same day. Defendant #1 may be served on the fifth day after filing and defendant #2 on the eightieth, and a new defendant may be joined and served months or years after the rest.25 A single deadline would let the order of service decide how much time each defendant had, and a late-served defendant could find the period spent before it knew of the suit. Separate clocks give every defendant the same period a lone defendant would have.
The two-defendant case shows the arithmetic, with each window running from that defendant's own service date:26
- Day 5: defendant #1 is served, and it has until day 36 to remove.
- Day 80: defendant #2 is served, and it has until day 111 to remove.
Until day 80, defendant #1 is the only defendant who has been served, so it may remove without anyone else's agreement. If it lets day 36 pass, no defendant can remove until service on defendant #2 opens a second window. At that point both defendants have been served, so unanimity applies again, and defendant #1's own period closed long before.27
Paragraph (C) resolves that difficulty. If defendants are served at different times and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though it did not previously initiate or consent to removal.28 The provision separates two acts that are easy to run together. Initiating a removal requires a window that is still open. Consenting only signals agreement with a removal that another defendant is entitled to carry out. Without paragraph (C), unanimity combined with separate clocks would let an earlier defendant's lapsed period, and its silence while it had no reason to remove, veto the later defendant's removal. The earlier defendant cannot remove alone, but it can agree.
Older materials teach a different rule. Under the single-date-of-removal doctrine, the 30 days ran from the day any defendant first received the pleading, so a later-served defendant who removed more than 30 days after another defendant's receipt was untimely even if it filed within 30 days of its own service.31 One theory behind the doctrine was unanimity: a defendant who had waited past 30 days lacked the capacity to consent, so a later removal could not be unanimous.32 The current text answers both halves. Paragraph (B) makes each clock the defendant's own, and paragraph (C) preserves the earlier defendant's power to consent.33 On the timeline above, a notice filed by defendant #2 on day 100 is timely, though the old approach would have called it late. An answer that measures every defendant's deadline from the first service applies a rule the current text does not state.
A defendant added after the case has already been removed raises a separate question: whether the addition sends the case back to state court. In the treatise's example, plaintiff Earp adds a Kansas defendant, James, after Bean removes. Had Earp begun in federal court and then added James, the court would have dismissed for lack of subject matter jurisdiction. Yet letting Earp win a remand by adding James would let him defeat Bean's removal by a choice of defendants he did not make until Bean invoked the removal jurisdiction.34 The later discussion of joinder after removal takes up that tension.
Step three tests timeliness and step four tests unanimity, so a notice can fail one test while passing the other. The common slip is to treat the end of one defendant's window as the end of its power to consent, and paragraph (C) says otherwise.