United States Court of Appeals

For the First Circuit

No. 13-2543

LAWRENCE P. NOVAK,

Plaintiff, Appellant,

v.

THE BANK OF NEW YORK MELLON TRUST CO., NA.,

as Successor to J.P. Morgan Chase Bank, as Trustee,

on Behalf of Mortgage Loan Trust 2004-2

Asset-Backed Certificates 2004-2

f/k/a The Bank of New York Trust Co., and

SELECT PORTFOLIO SERVICING, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard, Kayatta and Barron,

Circuit Judges.

Lawrence P. Novak on brief, pro se.

Peter F. Carr, II and Eckert Seamans Cherin & Mellott, LLC on

brief for appellees.

April 21, 2015
PER CURIAM. This appeal requires us to resolve a single

question: whether a defendant may seek to remove a state-court

action to federal court before being formally served. Construing

the relevant statute, 28 U.S.C. § 1446(b)(1), the Supreme Court has

held that a defendant's statutory period to remove does not begin

to run, and a defendant is not required to remove, until the

defendant has been served. Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 347-48 (1999). Plaintiff-Appellant

Lawrence Novak contends, however, that service is so essential to

removal that a defendant is precluded from filing a notice of

removal until after formal service of process. Because the

statutory text and legislative history indicate otherwise, however,

we reject Novak's reading of the statute. Instead, we conclude

that service is generally not a prerequisite for removal and that

a defendant may remove a state-court action to federal court any

time after the lawsuit is filed but before the statutorily-defined

period for removal ends.1

1 Because Novak has not named a defendant who is a citizen of

the forum state in this case, we need not consider, and do not

decide, whether Select Portfolio Servicing's notice of removal

would have been proper under the forum-defendant rule, 28 U.S.C. §

1441(b)(2), had one of the defendants in this case been a forum

defendant. See generally, Gentile v. Biogen Idec, Inc., 934 F.

Supp. 2d 313, 316-18 (D. Mass. 2013) (discussing various courts'

approaches to pre-service removal under § 1441(b)(2)); Lothrop v.

N. Am. Air Charter, Inc., No. 13-10235-DPW, 2013 WL 3863917, at *2

(D. Mass. July 11, 2013) (concluding that § 1441(b)(2) "create[s]

only a narrow exception, in cases involving forum defendants, to

the generally-accepted rule that 'formal service is not required

before a defendant can remove'" (citation omitted)).

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Invoking diversity jurisdiction, Defendant-Appellee

Select Portfolio Servicing removed this action from Massachusetts

state court to the United States District Court for the District of

Massachusetts. At the time of removal, Novak had not yet served

any of the defendants in this action, including Select Portfolio

Servicing. The district court denied Novak's motion to remand and

dismissed the action pursuant to Federal Rule of Civil Procedure

12(b)(6). Novak now contends that removal was improper because

Select Portfolio Servicing had not yet been formally served at the

time that it sought to remove.2

In 28 U.S.C. § 1446(b)(1) Congress has set forth the

period during which a defendant may remove a pending action from

state to federal court. That statute specifies that:

The notice of removal of a civil action

or proceeding shall be filed within 30 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 30 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.

2

 This specific argument for remand was only belatedly

included in a motion to amend Novak's original motion to remand. 

We need not determine whether the district court erred in denying

Novak's motion to amend, however, because Novak's legal argument

fails on its merits. See Samaan v. St. Joseph Hosp., 670 F.3d 21,

27 (1st Cir. 2012) (reviewing denial of a motion to remand de novo

where the facts are not in dispute).

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28 U.S.C. § 1446(b)(1) (emphasis added). Congress thus created two

alternative points at which to fix the defendant's deadline for

removing: one 30 days following receipt of the initial pleading,

and the other 30 days following service of process at a time that

the initial pleading has been filed in state court. In doing so,

Congress accounted for variations in state law regarding whether

the complaint must be included with service of the summons, with

the goal of making certain that defendants would have access to the

complaint before being required to file a notice of removal. 

Murphy Bros., 526 U.S. at 351.

Although Novak asserts that removal is not permissible

before a defendant has been served, we think it is clear that a

defendant generally need not wait until formal receipt of service

to remove. There is no indication that, in using the phrase

"within 30 days after," Congress intended to prohibit a defendant

from filing a notice of removal before having been formally served

and before the 30-day clock has begun to run. Instead, the

statute's text, as illuminated by the surrounding provisions, and

the legislative history both indicate that the statute's reference

to service is intended only to delineate the particular time when

a defendant's ability to remove expires.

Beginning with the statutory language's ordinary meaning,

we note that "within" has various meanings. Cf. Tyler v. Cain, 533

U.S. 656, 662 (2001). When coupled with "after" in the context of

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the removal statute, those meanings would have differing

consequences. For example, "within" could be used to signify a

specific, circumscribed time range. Webster's New International

Dictionary 2627 (3d ed. 1993) (defining "within" as "during the

course of" or "at any time during"). If used in that way, the

phrase "within 30 days after [service]" would describe a bounded

time range, beginning with service, both before and after which a

defendant is unable to remove. Alternatively, if the term "within"

is used to mean "before the end of" or "not longer in time than,"

id., then the phrase "within 30 days after [service]" might simply

define the specific point at which a case is no longer removable,

but allow removal at any point up until that time.

While either of these uses of "within . . . after" might

seem plausible, other portions of the removal statute make plain

that the more open-ended use was the intended one. See Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997) (noting that the "plainness

or ambiguity" of a statute's language can be determined by "the

specific context in which that language is used, and the broader

context of the statute as a whole"). For one thing, we find it

informative that a later subsection of § 1446 describes "the 30-day

requirement of subsection (b)" using slightly modified language

that tracks the more open-ended definition. See 28 U.S.C.

§ 1446(g) ("not later than 30 days after receiving, through

service, notice of any such proceeding"). This locution counsels

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in favor of reading "within 30 days after" as indicating that a

defendant can remove at any time before the removal period runs,

including before the clock begins ticking.

Most tellingly, however, § 1446(b)(1) states that, of the

two possible removal periods, a notice of removal must be filed

during "whichever period is shorter." Id. § 1446(b)(1). It is a

"cardinal principle of statutory construction that we must give

effect, if possible, to every clause and word of a statute." 

Williams v. Taylor, 529 U.S. 362, 404 (2002) (citation and internal

quotation marks omitted). As Novak reads the statute, a defendant

is precluded from removing before receiving service of process and,

thus, before either 30-day clock begins to run. But his reading

results in two time-bound removal periods of identical length: 30

days. Under that construction, the final clause of the subsection

serves no purpose. To properly give effect to the phrase

"whichever period is shorter," then, we are compelled to interpret

the removal "period" to run from the action's inception and,

accordingly, to read the statute to permit a defendant to file a

notice of removal before receiving formal service.

Legislative history supports our reading of the intended

meaning of "within 30 days after." The precursor to the current

removal statute permitted a defendant to remove "at the time, or

any time before" the defendant was required to respond to the

complaint under the applicable state law. 28 U.S.C. § 72 (1940)

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(repealed 1948) (emphasis added); see also Murphy Bros., 526 U.S.

at 351. Certainly, this wording more clearly indicated that

removal was possible at any time after the state-law action was

filed. But there is no indication that Congress intended to

meaningfully change that possibility when it reworded the statute

to take account of variations in state law. Indeed, both the House

and the Senate reports suggest that Congress intended that the

amended statute would continue only to set the time at which a

defendant's ability to remove expires and that a defendant may, but

is not required to, file a notice of removal before the removal

clock begins to run. See S. Rep. No. 81-303, at 6 (1949),

reprinted in 1949 U.S.C.C.A.N. 1248, 1254 (noting that the measure

reflects that "a defendant is not required to file his petition for

removal until 20 days [now 30] after he has received (or it has

been made available to him) a copy of the initial pleading filed by

the plaintiff . . . ." (emphasis added)); H.R. Rep. No. 81-352, at

14 (1949), reprinted in 1949 U.S.C.C.A.N. 1254, 1268 (noting that

"the petition for removal need not be filed until 20 days [now 30]

after the defendant has received a copy of the plaintiff's initial

pleading" (emphasis added)).

Ultimately, Novak does little beyond citing to Murphy

Brothers for his claim that removal before service comes too early. 

Yet, in noting that service of process "is fundamental to any

procedural imposition on a named defendant," and thus interpreting

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§ 1446(b)(1)'s first time period (removal following receipt of the

initial pleading) to begin to run only once a defendant has been

served, 526 U.S. at 350, the Court gave no indication that a

defendant was also prohibited from filing a notice of removal

before service. We read the statute to contemplate otherwise. Our

interpretation thus aligns with the decisions of other federal

courts that have considered this question since Murphy Brothers. 

As far as we can tell, every one has concluded that formal service

is not generally required before a defendant may file a notice of

removal. See, e.g., La Russo v. St. George's Univ. Sch. of Med.,

747 F.3d 90, 97 (2d Cir. 2014); Delgado v. Shell Oil Co., 231 F.3d

165, 177 (5th Cir. 2000); Whitehurst v. Wal-Mart, 306 F. App'x 446,

448 (11th Cir. 2008); Sutler v. Redland Ins. Co., No. 12-10656-RWZ,

2012 WL 5240124, at *2 (D. Mass. Oct. 24, 2012) (collecting cases). 

And, because "Congress is presumed to be aware of an administrative

or judicial interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without change,"

Lorillard v. Pons, 434 U.S. 575, 580 (1978), we find it informative

that Congress made no effort to cast aside this clear consensus

among federal courts when it amended § 1446 in 2011 without making

any substantive change to subsection (b)(1), see Federal Courts

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Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-

63, § 103, 125 Stat. 758, 760.3

Because the defendant in this case was not precluded from

removing before receiving service, we AFFIRM the judgment of the

district court.

3 Notwithstanding this consensus, we recognize that the

Supreme Court's holding in Murphy Brothers means that a defendant

must receive service before either of § 1446(b)(1)'s 30-day time

periods are triggered. Although, as a practical matter, that

holding may limit the universe of situations in which one period of

removal is "shorter" than the other, examples remain. Suppose a

plaintiff files an initial pleading in state court and serves the

defendant with a summons five days later. Consistent with state

law, however, the plaintiff does not include the initial pleading

with that summons. Forty days after that, the plaintiff

nevertheless formally provides the defendant with a copy of the

complaint (or the defendant otherwise receives "the initial

pleading setting forth the claim for relief"). The defendant might

attempt to invoke the first clause of § 1446(b)(1) to argue that he

was only required to remove within 30 days after receiving the

complaint (a period that would end seventy days after the action

was commenced). Yet, a "shorter" time period for removal would

follow from applying the second clause of § 1446(b)(1) -- requiring

the defendant to have removed thirty days from service at a time

that the "initial pleading has then been filed in court" (a period

that would end thirty-five days after the action was commenced).

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