FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 29, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12258

________________________

D. C. Docket No. 06-80702-CV-KLR

LORI JO BAILEY,

as the Personal Representative of the 

Estate of Chad Beal,

Plaintiff-Appellant,

versus

JANSSEN PHARMACEUTICA, INC., 

JANSSEN, L.P., et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 29, 2008)

Before ANDERSON and SILER,* Circuit Judges.**

______________

* Honorable Eugene Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by

designation.

** Judge Frank M. Hull was a member of the panel which heard oral argument but recused herself

following oral argument and did not participate in this decision. The case is decided by a quorum. 

See 28 U.S.C. §46(d) (2006); 11th Cir. R. 34-2. 
2

ANDERSON, Circuit Judge:

Plaintiff-appellant, Lori Jo Bailey, brought this wrongful death action on

behalf of Chad Edgar Beal (“Beal”), who died of fentanyl toxicity after he used a

prescription patch manufactured, distributed, and retailed by the defendant

companies. The action was originally filed in state court and removed under 28

U.S.C. § 1441(a), pursuant to § 1446(b), by the last-served defendant more than

thirty days after service on the other defendants. Appellant moved to remand the

action to state court, asserting that the notice of removal was untimely. The district

court denied this motion and thereafter granted defendants’ motions to dismiss with

prejudice the first amended complaint on procedural and substantive grounds. 

Appellant challenges the district court’s denial of her motion to remand and the

dismissal of her complaint. 

This case presents an issue of first impression for the Court with regards to

whether, in multi-defendant litigation, the limitations period for removal expires

upon thirty days from service on the first-served or last-served defendant under 28

U.S.C. § 1446(b). For the reasons that follow, we adopt the so-called “last-served”

defendant rule and accordingly affirm the district court’s denial of appellant’s

motion to remand the case to state court. We resolve the appeal of the motion to

dismiss in an unpublished appendix to this opinion.
3

I. FACTS

The decedent, Chad Edgar Beal, died on March 5, 2004, after having

received an allegedly lethal dose of a pain narcotic, fentanyl, via a transdermal skin

patch prescribed to him by his doctor. The prescription patch, Duragesic, was

manufactured by defendant Alza Corporation (“Alza”) and distributed by defendant

Janssen Pharmaceutica, Inc. (“Janssen”), both of which are subsidiaries of the

holding company, defendant Johnson & Johnson, Inc. (“Johnson & Johnson”). The

patch was sold to Beal at a south Florida store of defendant Walgreen Co.

(“Walgreen”). 

Beal’s administrator originally brought this wrongful death action in Palm

Beach County, Florida, on February 28, 2006. The first defendant served was

Walgreen, on May 12, 2006. The next defendant, Alza, was served on May 15,

2006, and defendant Janssen was served several days later on May 19, 2006. Alza

and Janssen filed motions to dismiss in state court on June 12, 2006. The last

defendant served was Johnson & Johnson, and it was served on June 22, 2006. All

defendants utilized the same attorney to represent them in the proceedings in state

court. On July 24, 2006, the last-served defendant, Johnson & Johnson, filed a

notice of removal of the action based on complete diversity, pursuant to 28 U.S.C.
This motion was filed within thirty days of receipt of service by Johnson & 1

Johnson, under Fed. R. Civ. P. 6(a). Thirty days from receipt of service would have been on July

22, 2006, a Saturday, so the last day for filing was July 24, 2006, the following Monday. 

Under appellant’s argument, the time for removal would have expired before

2

Johnson & Johnson even received service of process. 

4

§1446(b). 

1

Once the action was in federal court, the appellant timely sought remand,

arguing that, under §1446(b), the time for filing a notice of removal runs from the

date of service on the first defendant—here, Walgreen on May 12, 2006—and

therefore Johnson & Johnson’s notice was not timely brought within 30 days of the

May 12 service. In its November 14, 2006, order, the district court adopted the 2

“last-served” defendant rule, which permits each defendant to file a timely motion

for removal within thirty days of receipt of service by that individual defendant. 

Under this rule, earlier-served defendants who may have waived their right to

independently seek removal by failing to timely file a notice of removal—as

Janssen, Alza, and Walgreen did here—may nevertheless consent to a timely motion

by a later-served defendant. The district court, therefore, denied the motion to

remand the action to state court, having found that the notice of removal was timely

and that all defendants consented to the notice. 

II. STANDARD OF REVIEW
5

Because it involves questions of federal subject matter jurisdiction, we review

the denial of a motion to remand a removed state court action de novo. Pacheco de

Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Moreover, the

interpretation of § 1446(b) is a question of law we also review de novo. United

States v. Hooshmand, 931 F.2d 725, 737 (11th Cir. 1991). We have jurisdiction to

consider denial of a motion to remand upon the entry of a final order, which in this

case was the district court’s April 11, 2007, order, dismissing with prejudice the

first amended complaint. Schell v. Food Mch. Corp., 87 F.2d 385, 387 (5th Cir.

1937).

III. DISCUSSION

Section 1441(a) authorizes a defendant to seek removal of a suit originally

brought in state court when the federal court has diversity jurisdiction over the

cause of action. 28 U.S.C. §1441(a) (2006). Section 1446 describes the appropriate

removal procedure to invoke federal jurisdiction, and requires the defendant seeking

removal to file a timely notice of removal stating the grounds for removal with the

appropriate federal district court. 28 U.S.C. §1446(a). In order to be timely, 

[t]he 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 . . . .
Commentators have split as well: the Sixth Circuit observed in Brierly that at the 3

time it decided to endorse the last-served defendant rule, the two leading treatises, Wright &

Miller and Moore’s, came to divergent conclusions on the issue. See Brierly, 184 F.3d at 532

n.2. 

6

§1446(b). The Supreme Court held in Murphy Brothers., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 347-48, 119 S. Ct. 1322, 1325 (1999), that the timewindow in § 1446(b) “is triggered by simultaneous service of the summons and

complaint, or receipt of the complaint, ‘through service or otherwise,’ after and

apart from service of the summons, but not by mere receipt of the complaint

unattended by any formal service.” 

On its face, §1446(b) does not appear to address itself to multi-defendant

litigation. Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 532 (6th Cir.

1999) (“The statutory language itself 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.”). In applying the statute to multi-defendant litigation,

courts have split over whether each individual defendant has a right to seek removal

within thirty days of receipt of service or whether the appropriate time window for

§1446(b) runs from receipt of service by the first-served defendant only —in other 3

words, whether the “first-served” or “last-served” defendant triggers §1446(b)’s
The nomenclature used by the courts on this issue is, generally, “last-served” 4

versus “first-served,” and so we have accordingly used this same language. But we note that it

may be more in keeping with our interpretation of the rule to think of the “last-served” defendant

rule as the “each defendant” rule. In other words, the statute should be read to permit each

defendant, whether first or last served or somewhere in between, thirty days within which to file

a notice of removal upon receipt of service.

The Fourth Circuit’s decision in McKinney v. Board of Trustees of Mayland 5

Community College, 955 F.2d 924 (4th Cir. 1992), endorsed the first-served rule, but in dicta. 

See id. at 926 n.3 (“In a different situation, where B is served more than 30 days after A is

served, two timing issues can arise, and the law is settled as to each. First, if A petitions for

7

limitations period. Appellant urges us to adopt the first-served defendant rule and 4

accordingly find that Johnson & Johnson’s notice of removal was not timely under

§1446(b) because it was filed more than thirty days after receipt of service of

process by the first-served defendant. For the following reasons, we reject

appellant’s argument and interpret §1446(b) to permit each defendant thirty days in

which to seek removal. We thus conclude that Johnson & Johnson’s notice of

removal was timely. 

First, we observe that the trend in recent case law favors the last-served

defendant rule. See, e.g., General Pump & Well, Inc. v. Laibe Supply Corp., No.

CV607-30, 2007 WL 3238721, *2 (S.D. Ga. Oct. 31, 2007) (“More recently,

however, the trend in the case law has been toward the later-served rule. The Sixth

and the Eighth Circuits, several district courts in this circuit and a court in this

district have followed the later served rule.”). Among the four courts of appeals that

have considered this issue, only the Fifth Circuit and (seemingly) the Fourth Circuit5
removal within 30 days, the case may be removed, and B can either join in the petition or move

for remand. Second, if A does not petition for removal within 30 days, the case may not be

removed.”); see also id. at 926 (“While the first served defendant clearly must petition for

removal within thirty days, section 1446(b) does not imply in any way that later served

defendants have less than thirty days in which to act.”). The actual issue in McKinney, however,

was whether a later-served defendant has thirty days after effective service to join in a timely

petition for removal filed within thirty days of the first-served defendant. The petition for

removal was filed within thirty days of the first-served defendant in McKinney, but a later-served

defendant did not join the notice within the original thirty-day window. The court held that each

individual defendant has thirty days in which to join a timely filed notice of removal. Id. at 928.

The Northern District of Alabama was probably correct to note that McKinney endorsed,

essentially, a middle ground between the first-served and last-served defendant rules; the court

said:

[T]he Fourth Circuit has adopted a position somewhere in between the first-served

and last-served-defendant rules. In McKinney, the court held that each defendant

has thirty days from the date on which it is served to join in “an otherwise valid

removal petition.” Thus, if the original notice of removal filed by an

earlier-served defendant is defective in some way, the later-served defendant may

not remove, even if it attempts to do so within thirty days of being served. 

Fitzgerald v. Bestway Services, Inc., 284 F. Supp. 2d 1311, 1315-16 (N.D. Ala. 2003) (internal

citations omitted). 

8

have adopted the first-served rule, and have held that a notice of removal is only

timely if it is filed within thirty days of service of process on the first defendant. 

See Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir. 1986) (“The general rule

. . . is that if the first served defendant abstains from seeking removal or does not

effect a timely removal, subsequently served defendants cannot remove . . . due to

the rule of unanimity among defendants which is required for removal.”) (internal

quotations and punctuation omitted); Getty Oil Corp. v. Ins. Co. of N. Am., 841

F.2d 1254, 1262-63 (5th Cir. 1988) (“In cases involving multiple defendants, the
It is worth noting that none of these cases is procedurally identical to the instant 6

case: in Brown, a newly added defendant—four years after the suit had commenced in state

court—was denied the right to remove under the first-served defendant rule; in McKinney, the

court permitted a later-served defendant thirty days in which to join a notice of removal filed

within thirty days of the first-served defendant; in Getty Oil, the court held that all then-served

defendants have to join a notice of appeal filed within thirty days of the first defendant.

For example, in this case, there is no indication as to why service was delayed on 7

Johnson & Johnson for more than a month after filing of this action. Of course, Johnson &

Johnson, as the parent company, likely knew about the lawsuit prior to its receipt of service. But

the Supreme Court has rejected using simple notice or constructive service to start the clock on 

§ 1446(b) time window. See Murphy Bros., 526 U.S. at 347-48, 119 S. Ct. at 1325.

9

thirty-day period begins to run as soon as the first defendant is served (provided the

case is then removable).”); McKinney v. Bd. of Trustees of Md. Comm. Coll., 955

F.2d 924, 926 & n.3 (4th Cir. 1992). The most recent of these decisions, the Fourth 6

Circuit’s decision in McKinney, is now more than fifteen years old. Conversely, the

two courts among the circuit courts to have adopted the last-served defendant rule

have done so far more recently: the Eighth Circuit in 2001, and the Sixth Circuit in

1999. Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 755 (8th Cir.

2001); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th Cir.

1999).

Second, we are convinced that both common sense and considerations of

equity favor the last-served defendant rule. The first-served rule has been criticized

by other courts as being inequitable to later-served defendants who, through no fault

of their own, might, by virtue of the first-served rule, lose their statutory right to

7
The Fourth Circuit in McKinney relied in part on statutory changes—which made 8

Rule 11 applicable to petitions for removal—to permit defendants a full thirty days in which to

decide whether to join an otherwise timely notice of removal. If later-served defendants did not

have the full thirty days to decide whether to join a petition for removal, it would be harsh to

subject them to Rule 11 sanctions. See McKinney, 955 F.2d at 928. 

10

seek removal. Both the Eighth and Sixth Circuits endorsed the last-served

defendant rule, at least in part, for equitable reasons. See Marano, 254 F.3d at 755

(“[The Fifth Circuit] did not consider, however, the ‘hardships’ to a defendant when

the first-served defendant for whatever reason does not file a notice of removal

within thirty days of service. Later-served defendants would not be afforded the

opportunity to attempt to persuade their co-defendants to join a notice of removal if

more than thirty days had passed since the first defendant was served.”); Brierly,

184 F.3d at 533 (noting that “as a matter of fairness to later-served defendants” it

endorsed the last-served rule).8

Third, the Sixth Circuit recognized that the first-served rule requires reading

first-served defendant into the statute, whereas the statute, as written, could

reasonably be read to permit each defendant a right to remove within thirty days of

service on the individual defendant: “as a matter of statutory construction, holding

that the time for removal commences for all purposes upon service of the first

defendant would require us to insert ‘first’ before ‘defendant’ into the language of

the statute. We are naturally reluctant to read additional words into the statute,
11

however.” Brierly, 184 F.3d at 533.

Fourth, we are unpersuaded by the rationale behind the first-served rule. 

Those courts that have endorsed the first-served rule have generally done so for two

reasons: (1) it is perceived as more consistent with the unanimity rule for notices of

removal; and, (2) courts are to narrowly construe the removal statute and federal

jurisdiction. See, e.g., Brown, 792 F.2d at 482. 

The unanimity rule requires that all defendants consent to and join a notice of

removal in order for it to be effective. See Russell Corp. v. Am. Home Assur. Co.,

264 F.3d 1040, 1050 (11th Cir. 2001). The last-served rule is not inconsistent with

the rule of unanimity. Earlier-served defendants may choose to join in a laterserved defendant’s motion or not, therefore preserving the rule that a notice of

removal must have the unanimous consent of the defendants. The unanimity rule

alone does not command that a first-served defendant’s failure to seek removal

necessarily waives an unserved defendant’s right to seek removal; it only requires

that the later-served defendant receive the consent of all then-served defendants at

the time he files his notice of removal. 

Although it is true that we have stated previously that “all uncertainties as to

removal jurisdiction are to be resolved in favor of remand,” Russell Corp., 264 F.3d

at 1050, we do not find that a strict construction of the removal statute necessarily
12

compels us to endorse the first-served defendant rule in light of the Supreme Court’s

decision in Murphy Brothers, 526 U.S. at 347-48, 119 S. Ct. at 1325. See Marano,

254 F.3d at 756 (noting that the Murphy Brothers Court appeared to relax its strict

constructionist approach to interpreting the removal statute); see also Murphy Bros.,

526 U.S. at 357, 119 S. Ct. at 1330 (Rehnquist, C.J., dissenting) (stating that the

Murphy Brothers decision “departs from this Court’s practice of strictly construing

removal and similar jurisdictional statutes”).

Finally, we agree with the Eighth Circuit in Marano that the Supreme Court’s

decision in Murphy Brothers supports endorsing the last-served rule. The court

observed:

The [Supreme] Court [in Murphy Brothers] held that formal

process is required, noting the difference between mere notice to a

defendant and official service of process: “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.” Thus, a defendant is “required to take action” as a

defendant—that is, bound by the thirty-day limit on removal—“only

upon service of a summons or other authority-asserting measure stating

the time within which the party served must appear and defend.” The

Court essentially acknowledged the significance of formal service to

the judicial process, most notably the importance of service in the

context of the time limits on removal . . . . 

Marano, 254 F.3d at 756 (internal citations omitted). Accordingly, the Eighth

Circuit concluded that the Supreme Court, based on its reasoning in Murphy
See, e.g. General Pump & Well, Inc. v. Laibe Supply Corp., No. CV607-30, 2007 9

WL 3238721, at *2 (S.D. Ga. Oct. 31, 2007) (adopting last-served defendant rule); C.L.B. v.

Frye, 469 F. Supp. 2d 1115, 1119-20 (M.D. Fla. 2006) (following last-served defendant rule);

Adams v. Charter Commc’ns. VII, LLC, 356 F. Supp. 2d 1268, 1273 (M.D. Ala. 2005) (adopting

first-served defendant rule); Kimbrough v. City of Cocoa, No. 05CV471ORL31KRS, 2005 WL

1126651, *5 (M.D. Fla. May 5, 2005) (adopting last-served defendant rule); Fitzgerald v.

Bestway Servs., Inc., 284 F. Supp. 2d 1311 (N.D. Ala. 2003) (following last-served rule for lateradded defendants); Collings v. E-Z Serve Convenience Stores, Inc., 936 F. Supp. 892, 895 (N.D.

Fla. 1996) (same). But see Kuhn v. Brunswick Corp., 871 F. Supp. 1444, 1447 (N.D. Ga. 1994)

(following first-served rule). 

13

Brothers, would endorse the last-served defendant rule because that rule recognizes

that individual defendants are not required to take action—whether seeking removal

or otherwise responding to another defendant’s notice of removal—until they are

properly served, “regardless of when—or if—previously served defendants had

filed such notices.” Id. In other words, Murphy Brothers supports the last-served

defendant rule because a defendant has no obligation to participate in any removal

procedure prior to his receipt of formal service of judicial process. Contrary to

Murphy Brothers, the first-served defendant rule would obligate a defendant to seek

removal prior to his receipt of formal process bringing him under the court’s

jurisdiction. 

Perhaps prior to Murphy Brothers and its holding that notice is insufficient to

trigger § 1446(b)’s time window, the issue of which rule to endorse would be a

closer call than it is now. The tide of recent decisions by the courts of appeals, as

well as the majority of the district courts in this Circuit, recognize that equity 9
Appellant also argues that the motions to dismiss filed in state court by defendants 10

Alza and Janssen constituted a waiver of their right to remove and also barred their subsequent

joinder of Johnson & Johnson’s removal petition. We recently held “that the removing

defendant did not waive its right of removal by filing a motion to dismiss the plaintiff’s

complaint while the case was still pending in state court.” Cogdell v. Wyeth, 366 F.3d 1245,

1249 (11th Cir. 2004). On the basis of our controlling opinion in Cogdell, we reject appellant’s

14

favors permitting each defendant thirty days in which to seek removal under the

statute. As the Eighth Circuit observed, the last-served defendant rule is consistent

with Murphy Brothers, in which the Supreme Court held that a defendant has no

obligation to engage in litigation prior to his receipt of formal service of process. 

Murphy Brothers also signals a slight departure from the weight courts might

ordinarily put on strict construction of the removal statute. It appears to us to be

contrary to the Supreme Court’s holding in Murphy Brothers, as well as the interests

of equity, to permit a first-served defendant to, in effect, bind later-served

defendants to a state court forum when those defendants could have sought removal

had they been more promptly served by the plaintiff. Indeed, under the facts of this

case, the first-served defendant rule would require us to find that the three earlierserved defendants waived Johnson & Johnson’s right to seek removal, before it was

obligated to participate in the lawsuit under Murphy Brothers. We cannot sanction

such result, and therefore conclude that the last-served defendant rule is in keeping

with Murphy Brothers, is consistent with the trend of case law, and is the most

reasonable interpretation of §1446(b).10
argument. 

The rest of appellant’s arguments on appeal are addressed in a separate,

11

unpublished appendix to this decision, which affirms in part, and reverses in part the dismissal

with prejudice of the appellant’s complaint. 

15

IV. CONCLUSION

We hereby adopt the last-served defendant rule, which permits each

defendant, upon formal service of process, thirty days to file a notice of removal

pursuant to §1446(b). Accordingly, the district court’s denial of appellant’s motion

to remand the action to state court is

AFFIRMED.11