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DRI ARGUES THAT REMOVAL PERIOD BEGINS SERVICE OF
PROCESS
The Defense Research Institute has filed an amicus curiae brief in
the United States Supreme Court on the question of when the 30-day period in
which a defendant may exercise its removal right begins to run. The DRI
brief argues that the period should begin to run when the defendant is
formally served with the plaintiff's complaint, not when the defendant
receives -- perhaps informally -- information that a complaint has been
filed.
The amicus brief has been filed in the case of Murphy Brothers,
Inc. v. Michetti Pipe Stringing, Inc., No. 97-1909. Michetti had sued
Murphy in an Alabama state court. Within a few days of filing suite,
Michetti's counsel FAXed a copy of the complaint to Murphy's vice President
of risk management. Two weeks later, Michetti formally served Murphy by
certified mail. Thirty days after that, Murphy filed a notice to remove the
lawsuit to federal court, pursuant to 28 U.S.C. §1446(b), which prescribes
a 30-day limit for such notice. Michetti moved the federal district court to
remand the matter to state court on the ground that the notice of removal
was untimely. The district court denied the motion, but the Eleventh Circuit
Court of Appeals reversed, holding that the 30 days began to run when the
defendant received the FAXed copy of the complaint, rather than later when
the defendant was formally served. 125 F.3d 1396 (11th Cir.1997). The
Supreme Court granted certiorari. 119 S.Ct. 401 (1998).
The DRI amicus brief was prepared by David C. Lewis, or Phoenix,
Arizona law firm of Jones, Skelton & Hochuli. It asks the Court to
interpret 8 U.S.C. §1446(b) to mean that the removal period begins to run
no sooner than the date of formal service. It reflects the widely-held
defense position that removal of certain actions from state court to federal
court is appropriate and serves the best interests of defense litigants.
Thus, the defense should have as much time as possible (up to 30 days) to
study the complaint to determine whether it belongs in a federal forum under
either diversity or federal question jurisdiction.
The brief argues that beginning the removal period whenever a defendant
receives, from any source whatsoever, a copy of the initial pleading,
"encourages a practice fraught with legal, ethical, and practical
problems." Triggering legal obligations on such informal receipt rather
than formal service raises the real and substantial potentials of
discouraging pre-suit settlement negotiations, penalizing the conciliatory
defendant, and rewarding the cunning claimant.
Adherence to the "receipt rule" also threatens principles of
fundamental fairness and notice in judicial proceedings. A party over whom
the court has not yet acquired personal jurisdiction should not be subject
to procedural penalties, such as forfeiture of valuable removal rights.
Beyond encouraging forum-shopping, the receipt rule also enables a plaintiff
to block his opponent’s potential exercise of removal rights by allowing
him to convey misleading notice, through "courtesy copies" of the
complaint.
The DRI brief also urges the Court to consider the broader implications
of the "receipt rule" in the technological information age courts
are entering. Suppose a defense attorney is searching his state court’s
website and discovers that a complaint has already been filed in a matter he
is attempting to settle. The complaint has not yet been served on him, but
has he "received notice" of it, triggering the 30-day period?
A copy of the amicus brief in Murphy v. Michetti may be
obtained from DRI headquarters in Chicago or by calling the NCADA office to
request a copy.
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