PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHIRLEY M. BARBOUR; HARRY M. 

BARKER; ANTHONY BURTON;

WILLIAM J. CLINE; BARBARA

FAULKNER; RAYMOND N. FLECK, JR.;

ARTHUR HAMILTON, II; DANIEL L.

HAMM; TROY L. HARRIS; GARY

LANDAU; VINCENT MARRA; PEGGY

A. MURPHY; RICHARD DOUGLAS

PERMENTER; PATRICIA PIERSON;

JEFFREY N. ROBERTS; ANNIE SMITH

RODGERS; REESS H. SCOTT; JOYCE

SEE; RONEY SMITH; FRED M.  No. 08-1740

STEWART; DANIEL LEE TICHNELL;

ROBERT THOMAS; CHARLES F.

WADKINS,

Plaintiffs-Appellants,

v.

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT

WORKERS OF AMERICA; LOCAL NO.

1183 OF INTERNATIONAL UNION, 

Rehearing en banc granted, May 6, 2010
UNITED AUTOMOBILE, 

AEROSPACE AND AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA;

LOCAL NO. 1212 OF INTERNATIONAL

UNION, UNITED AUTOMOBILE, 

AEROSPACE AND AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(1:08-cv-01076-AMD)

Argued: September 22, 2009

Decided: February 4, 2010

Before AGEE, Circuit Judge, HAMILTON, Senior Circuit

Judge, and Margaret B. SEYMOUR, United States District

Judge for the District of South Carolina,

sitting by designation.

Affirmed in part; vacated and remanded with instructions by

published opinion. Judge Agee wrote the opinion, in which

Judge Seymour joined. Senior Judge Hamilton wrote a separate opinion concurring in the judgment in part and dissenting

in part. 

COUNSEL

ARGUED: Thomas C. Costello, WEST & COSTELLO,

LLC, Baltimore, Maryland, for Appellants. Ava Barbour,

2 BARBOUR v. INTERNATIONAL UNION
INTERNATIONAL UNION, UAW, Detroit, Michigan, for

Appellees. ON BRIEF: John H. West, III, WEST & COSTELLO, LLC, Baltimore, Maryland, for Appellants. Wendy

L. Kahn, Jeffrey W. Burritt, ZWERDLING, PAUL, KAHN &

WOLLY, PC, Washington, D.C., for Appellees.

OPINION

AGEE, Circuit Judge:

In this appeal we first consider whether removal of the case

from state to federal court was timely. Holding that the notice

of removal was timely filed, we then determine whether the

district court possessed subject matter jurisdiction over the

case based on the doctrine of complete preemption. For the

reasons that follow, we hold that the district court was without

subject matter jurisdiction. 

I. Factual Background

Because this case was decided on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept the facts alleged in the complaint as true and

view "them in the light most favorable to the plaintiff[s]." Am.

Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212,

228-29 (4th Cir. 2004). The facts, as pled, reflect the following.

Shirley Barbour and certain fellow retirees ("the Retirees")

at a Chrysler automobile assembly plant in Newark, Delaware

filed suit in the Circuit Court of Cecil County, Maryland

against (1) International Union, United Automobile, Aerospace and Agricultural Implement Workers of America

("International Union"), (2) Local 1183 of the International

Union ("Local 1183"), and (3) Local 1212 of the International

Union ("Local 1212") (the defendants are collectively "the

BARBOUR v. INTERNATIONAL UNION 3
UAW") alleging that the UAW provided them with false

information regarding their eligibility to receive retirement

incentive packages in 2007. 

According to the Retirees’ complaint, near the end of 2006

they each had accrued the requisite years of service to retire

from Chrysler with full benefits. At about that same time, the

Retirees became aware that Chrysler might reduce its workforce and that such workforce reductions might occur at the

Newark plant. Knowing that workforce reductions often

include financial incentives to retirement-eligible employees,

the Retirees sought information from the UAW’s benefit representatives concerning their potential eligibility for any

financial incentives that might materialize. The Retirees were

concerned that if they retired prematurely, they might fail to

qualify for workforce reduction financial incentives to which

they would otherwise be entitled. Moreover, it was the Retirees’ understanding that Chrysler could not offer any such

incentives without the approval of the UAW. 

The UAW told the Retirees and other employees who

inquired that they should delay their retirement from Chrysler

until January 31, 2007, which would ensure their eligibility

for any workforce reduction financial incentive offered

throughout the 2007 calendar year. Relying on this advice, the

Retirees submitted the applications necessary to effectuate

their respective retirements as of January 31, 2007. 

Between the submission of the retirement paperwork and

the effective date of their retirement, however, many of the

Retirees heard that the offering of a workforce reduction

financial incentive package was imminent. In response, some

of the Retirees again expressed concern to the UAW that their

retirements should be postponed. In response to these inquiries, the UAW’s officers and benefits representatives

informed the Retirees that "no retirement package was ‘coming down,’ and that any retirement package offered in 2007

would be retroactive to January 31, 2007 and include all

4 BARBOUR v. INTERNATIONAL UNION
[employees] who retired on or after that date . . . ." J.A. 29.

Relying on this advice, the Retirees retired on January 31,

2007. In mid-February Chrysler announced that financial

incentives of approximately $70,000 per person would be

offered to employees at the Newark plant but would only

apply to persons employed as of the date of the announcement, not retroactively. The Retirees were therefore ineligible

to receive the financial incentives. 

On April 28, 2008 the Retirees filed their complaint in the

Maryland state court asserting that "[a]s a result of their union

membership, the UAW owed [them] duties of loyalty, fidelity

and full disclosure of all material facts." J.A. 26. Alleging a

breach of these fiduciary duties, the Retirees pled a cause of

action for negligent misrepresentation based on the UAW’s

assertions to them that no financial incentives were being

negotiated between the union and Chrysler and that any such

incentive would be retroactively available to employees retiring on or after January 31, 2007. The Retirees also asserted

a claim for negligence based on a breach of "duties of care,

fidelity and loyalty" because of (1) the UAW’s failure to

advise them of the negotiations with Chrysler, (2) the UAW’s

failure to warn them that their retirement before the financial

incentives were announced would preclude them from receiving the incentives, and (3) the International Union’s failure to

keep the local unions apprised of the status of its negotiations

with Chrysler. J.A 55-56.1

The Retirees served the International Union with the complaint on March 20, 2008. Local 1183 was served with process on March 29, 2008. On April 28, 2009, more than thirty

days after service on the International Union, but within thirty

days of service on Local 1183, but before Local 1212 was

served, all three defendants filed a joint notice of removal

1Chrysler is not a defendant in this case and the Retirees make no claim

against it nor do they allege that they ever communicated with Chrysler

in any way as to the workforce reduction financial incentive package. 

BARBOUR v. INTERNATIONAL UNION 5
pursuant to 28 U.S.C. §§ 1331, 1337 and 1441 even though

Local 1212 had not been served. 

The UAW pled in the notice of removal that "the duty of

care [the Retirees] maintain[ ] [they are] owed from Defendant[s] is the duty of fair representation . . . which arises from

UAW’s status from its exclusive bargaining authority pursuant to section 9(a) of the National Labor Relations Act, 29

U.S.C. § 159." J.A. 13. The UAW then filed a motion to dismiss under Rule 12(b)(6) based on the assertion that the Retirees’ claims were barred by the applicable statute of

limitations under federal labor law. See § 10(b) of the NLRA,

29 U.S.C. § 160(b).

The Retirees filed a motion to remand the case to state

court, arguing that (1) the UAW’s notice of removal was not

timely filed and (2) there was no basis for federal jurisdiction.

On June 12, 2008, the district court issued a memorandum

and order denying the Retirees’ motion to remand and granting the UAW’s motion to dismiss. The district court concluded that the Retirees had "artfully" attempted to "‘plead

around’ the pre-emptive force of federal labor law" and that

their state law claims were "completely pre-empted by the

federal duty of fair representation" in section 9(a) of the

NLRA. J.A. 127. The district court found that "[t]he breach

of that duty, if any, is a matter of federal, not state, law." J.A.

127. Concurrent with its denial of the Retirees’ motion to

remand the district court granted the UAW’s motion to dismiss based upon the asserted six-month statute of limitations.2

The Retirees, having pursued their claims solely in state court,

were thus time-barred from filing a claim in federal court. 

2The parties disagree as to the applicability of a six-month statute of

limitations to the Retirees’ claims and the Retirees have separately

assigned error to the district court’s dismissal of the case on that basis.

Because of our decision regarding the district court’s subject matter jurisdiction, it is unnecessary to address any question regarding the applicable

statute of limitations. 

6 BARBOUR v. INTERNATIONAL UNION
On the following day, the Retirees moved the district court

for reconsideration of its ruling and sought explanation of its

determination that the UAW’s notice of removal had been

timely filed. The district court entered an order denying the

Retirees’ motion for reconsideration and stating the court’s

belief that this case presents "an excellent opportunity for the

Fourth Circuit to clarify whether the ‘first-filed’ ‘dictum’ in

McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924

(4th Cir. 1992), means what it actually seems to say." J.A.

132.

The Retirees have timely appealed and we have jurisdiction

pursuant to 28 U.S.C. § 1291. For the reasons set forth below,

we affirm the judgment of the district court in part, reverse in

part and remand the case with instructions to the district court.

II. Timeliness of the Notice of Removal

The threshold issue we consider is whether removal of the

case to federal court was timely. If the notice was untimely,

we need not consider the UAW’s claim of complete preemption, as an untimely notice of removal would require that the

case be remanded to the Maryland state court because the federal court would lack jurisdiction over the claims or the parties. If, on the other hand, the UAW’s notice of removal was

timely, only then must we consider whether the district court

properly determined that subject matter jurisdiction otherwise

existed over the Retirees’ claims.

"For questions concerning removal to federal court, our

standard of review is de novo." Payne ex rel. Estate of

Calzada v. Brake, 439 F.3d 198, 203 (4th Cir. 2006). The statutory basis for removal jurisdiction is found in 28 U.S.C.

§ 1446(b), which provides:

The 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

BARBOUR v. INTERNATIONAL UNION 7
copy of the initial pleading setting forth the claim for

relief upon which such action or proceeding is based,

or within thirty 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.

(Emphasis added.) The statute speaks only in terms of a singular defendant and does not explicitly address the timeliness

of removal in cases involving multiple defendants, as in the

case at bar. See 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."). "All pertinent sections of the removal statute

contemplate cases with more than one defendant, except for

§ 1446(b). This conspicuous omission has created the most

serious statutory construction problem when removal is

sought in multidefendant actions." Howard B. Stravitz,

Recocking the Removal Trigger, 53 S.C. L. REV. 185, 200

(2002). As a result, our sister circuits have differed in their

application of the statute to cases involving multiple defendants. 

The Fifth Circuit was the first circuit court of appeals to

address the issue in Brown v. Demco, Inc., 792 F.2d 478 (5th

Cir. 1986), where it stated that "[t]he general rule . . . is that

‘[i]f 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." Id. at 481.

Two years later, in Getty Oil Corp. v. Insurance Co. of North

America, 841 F.2d 1254 (5th Cir. 1988), the Fifth Circuit

expressly adopted what has become known as the "firstserved defendant" rule. 

8 BARBOUR v. INTERNATIONAL UNION
In cases involving multiple defendants, the thirtyday period begins to run as soon as the first defendant is served (provided the case is then removable).

It follows that since all served defendants must join

in the petition, and since the petition must be submitted within thirty days of service on the first defendant, all served defendants must join in the petition

no later than thirty days from the day on which the

first defendant was served.

Id. at 1262-63 (internal citations omitted).

However, since Getty Oil was decided, three other circuits

have rejected this rule in favor of what is generally referred

to as the "last-served defendant" rule. See, Bailey v. Janssen

Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. 2008); Marano

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

2001); Brierly, 184 F.3d at 533. The last-served defendant

rule "permits each defendant, upon formal service of process,

thirty days to file a notice of removal pursuant to § 1446(b)."

Bailey, 536 F.3d at 1209. "Earlier-served defendants may

choose to join in a later-served defendant’s motion or not,

therefore preserving the rule that a notice of removal must

have the unanimous consent of the defendants." Id. at 1207.

After Getty Oil but before the decisions in Bailey, Marano

and Brierly, this Court touched upon the issue with the following footnote in the McKinney decision:

[W]here 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 removal

within 30 days, the case may be removed, and B can

either join in the petition or move for remand. See 28

U.S.C. § 1448. Second, if A does not petition for

removal within 30 days, the case may not be

removed.

BARBOUR v. INTERNATIONAL UNION 9
955 F.2d at 926 n.3.

Courts have characterized the language from the last sentence in Footnote 3 of McKinney as a "middle ground" position 

somewhere in between the first-served and lastserved-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 Servs., Inc., 284 F. Supp. 2d 1311,

1315-316 (N.D. Ala. 2003) (internal citations omitted); see

also Bailey, 536 F.3d at 1206 n.5 ("The Northern District of

Alabama was probably correct to note that McKinney

endorsed, essentially, a middle ground between the firstserved and last-served defendant rules. . . . ")

Many, if not most, of the district courts in this circuit that

have applied McKinney have considered the "rule" dicta. See,

e.g., Guyon v. Basso, 403 F. Supp. 2d 502, 508 (E.D. Va.

2005) (acknowledging that defendants "urge the court to . . .

disregard McKinney dictum that a first-served defendant must

file a removal notice within thirty days from the date of service . . . ."); Ratliff v. Workman, 274 F. Supp. 2d 783, 787

(S.D. W. Va. 2003) ("statement [in Footnote 3] was unnecessary to the Fourth Circuit’s actual decision, however, and is

therefore considered dictum"); Superior Painting & Contracting Co. v. Walton Tech., Inc., 207 F. Supp. 2d 391, 393 n.4

(D. Md. 2002) (noting that even though "the court’s pronouncements on when first-served defendants must file

notices of removal has been termed dicta," district courts

within the circuit should still consider dictum presumptively

10 BARBOUR v. INTERNATIONAL UNION
correct). Judge Shedd, a member of the panel in McKinney,

wrote in Branch v. Coca-Cola Bottling Co., 83 F. Supp. 2d

631, 634 (D.S.C. 2000), that McKinney was not "controlling

precedent" "because [the relevant language in Footnote 3] was

unnecessary to the Fourth Circuit’s actual decision [and] must

be considered as being dictum."3

Moreover, after the Supreme Court’s decision in Murphy

Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344

(1999), the district court in Ratliff adopted the last-served

defendant rule, holding 

that each defendant has thirty days to remove starting from the time service of process is effected on

that defendant. This requires that any previouslyserved defendant be allowed to consent to join in

removal even after the expiration of their own thirtyday time limitation. Once the thirty-day time period

for the first-served defendants has expired, however,

the first-served defendants are no longer allowed to

initiate a petition for removal. 

274 F. Supp. 2d at 791.

The Ratliff court, noting that none of the prior decisions by

other district courts in this circuit had addressed the effect of

Murphy Brothers on removal in actions with multiple defendants, determined Footnote 3 was not controlling because

"[t]his statement was unnecessary to the Fourth Circuit’s

actual decision . . . and is therefore considered dictum." 274

F. Supp. 2d at 787. But see Guyon v. Basso, 403 F. Supp. 2d

502, 508 n.10 (E.D. Va. 2005) (following McKinney and finding that Murphy Brothers did not address the issue presented);

Ford v. Baltimore City Dep’t of Soc. Servs., No. CCB-06-

2134, 2006 WL 3324896, at *2 n.2 (D. Md. Nov. 13, 2006)

3At the time McKinney was decided, Judge Shedd was a District Court

Judge and sat by designation. 

BARBOUR v. INTERNATIONAL UNION 11
(unpublished) (district court unpersuaded that the Supreme

Court’s decision in Murphy Brothers necessitates rejection of

McKinney). 

The issue having been properly preserved below, and in

consideration of the split among the district courts in this circuit, we accept the district court’s invitation in this case to

clarify the law in this circuit regarding removal under

§ 1446(b) in cases with multiple defendants. 

"[A] panel of this court cannot overrule, explicitly or

implicitly, the precedent set by a prior panel of this court.

Only the Supreme Court or this court sitting en banc can do

that." Mentavlos v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir.

2001). Therefore, to reject the so-called "McKinney rule," we

must conclude that either (1) McKinney is non-binding precedent, or (2) subsequent holdings of the Supreme Court counsel a different result. We find that, because it was dictum, the

"rule" expressed in McKinney is not binding on this panel and

that intervening case law from the Supreme Court, while not

controlling, nonetheless "counsels" a different result. See

United States v. Pasquantino, 336 F.3d 321, 329 (4th Cir.

2003) (en banc) ("The first significant problem is that the

statements [the defendants] rely upon . . . are pure and simple

dicta, and, therefore, cannot serve as a source of binding

authority in American jurisprudence."); see, e.g., Alexander v.

Sandoval, 532 U.S. 275, 282 (2001) ("[T]his Court is bound

by holdings, not language."); Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 379 (1994) ("It is to the holdings of our

cases, rather than their dicta, that we must attend . . . .");

Estate of Love v. Comm’r, 923 F.2d 335, 337 (4th Cir. 1991)

(ruling on issue despite dicta in prior case); Branch, 83 F.

Supp. 2d at 634 n.12 ("Dictum includes ‘any statement of the

law enunciated by the court merely by way of illustration,

argument, analogy, or suggestion.’") (quoting Black’s Law

Dictionary 454 (6th ed. 1990)). Even the dissent acknowledges that "the inclusion of Footnote 3 in the McKinney deci12 BARBOUR v. INTERNATIONAL UNION
sion arguably was not necessary to the decision . . . ." Infra

at 38.

We conclude, as have many other courts to consider the

issue, that any language in McKinney requiring a first-served

defendant to have filed a petition for removal within thirty

days of being served as a bar to all later-served defendants

constitutes non-binding dicta.4See cases cited supra at 10-11;

Bailey, 536 F.3d at 1206 n.5 ("The Fourth Circuit’s decision

in [McKinney] endorsed the first-served rule, but in dicta.");

Bonadeo v. Lujan, No. CIV-08-0812, 2009 WL 1324119, at

*6 (D.N.M. Apr. 30, 2009) (noting that McKinney "apparently

endors[ed] the [last-served defendant] rule in dicta"). While

McKinney involved multiple defendants served at different

times, unlike the case at bar, the first-served defendants in

McKinney did timely file a notice of removal within 30 days

of the service of process on them. The issue in McKinney was

whether the later-served defendants could join in the existing

removal petition (to achieve the required unanimity) more

than 30 days after the date of service on the first defendants

but within 30 days of service upon the later-served defendants.5

4

It is worth noting that Footnote 3 in McKinney is dicta citing dicta that

is no longer good law. The case cited by the court as authority in Footnote

3, Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F. Supp. 351 (E.D.

Mo. 1981), was overruled by the Eighth Circuit in Marano. Moreover, the

language to which the McKinney Court cited in Quick Erectors was itself

dicta. See Smith v. Health Ctr. of Lake City, Inc., 252 F. Supp. 2d 1336,

1344 (M.D. Fla. 2003) (stating that in Marano "the Eighth Circuit adopted

a rule contrary to the dicta in Quick Erectors"). 

5We respectfully disagree with our dissenting colleague who contends

that "the flaw" in our reasoning is our assertion "that the McKinney court

did not address the question of initial removal" because, in fact, it did so

"when it agreed . . . that the first-served defendant must petition for

removal with[in] thirty days of being served." Infra at 42. The fact that the

court commented upon initial removal does not negate the fact that doing

so was unnecessary dicta under the particular facts of that case and not

necessary for the Court’s holding on later-served defendants. 

BARBOUR v. INTERNATIONAL UNION 13
By contrast, in the case at bar, the first-served defendant,

the International Union, did not file a notice of removal

within 30 days of being served with process. Thus, the issue

of initial removal by a defendant other than the first-served

defendant was simply not before the court in McKinney.

Therefore, the McKinney court’s expression in Footnote 3

regarding the application of § 1446 in the circumstance where

the first-served defendant had not timely filed a notice of

removal was gratuitous and unrelated to the issue then before

the court.6 Footnote 3 is classic judicial dictum: "an opinion

by a court . . . that is not essential to the decision," Black’s

Law Dictionary 485 (8th ed. 2004) and therefore not binding

on later panels in this circuit. Pasquantino, 336 F.3d at 329

("dicta . . . cannot serve as a source of binding authority in

American jurisprudence"); see also U.S. Nat’l Bank of Or. v.

Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 463, n. 11

(1993) (commenting on "the need to distinguish an opinion’s

holding from its dicta").

The dissent contends that the McKinney panel’s "agreement

with the Getty Oil court’s first holding was critical to the decision, in that it closed the door to a reading of § 1446(b) that

would have allowed later-served defendants to petition for

removal within thirty days of being served when the firstserved defendant had not." Infra at 42. Again, we respectfully

disagree. As with the dicta in either the body of McKinney or

in Footnote 3, the panel’s reliance on Getty Oil was not critical to the issue of whether later-served defendants had thirty

days to join in the first-served defendant’s already timely filed

petition for removal.

6Similarly, the phrase from the body of the McKinney opinion noted by

the dissent — "while the first served defendant clearly must petition for

removal within thirty days" — is a repeat of the second sentence of Footnote 3 and was not necessary to the basis for the McKinney opinion, as

noted earlier. The first-served defendant had timely filed in McKinney and

any speculation about what might happen if that defendant had not filed

was not germane to the issue before the Court in McKinney regarding

later-served defendants. 

14 BARBOUR v. INTERNATIONAL UNION
In addition to our conclusion that Footnote 3 is non-binding

dicta, we, along with the circuit courts of appeal in Bailey and

Marano and the district court in Ratliff, also find that the

Supreme Court’s analysis in Murphy Brothers undermines the

validity of the last sentence of Footnote 3. In Murphy Brothers the Supreme Court was asked to determine "whether the

named defendant must be officially summoned to appear in

the action before the time to remove [under 28 U.S.C. §

1446(b)] begins to run." Murphy Brothers, 526 U.S. at 347.

The Court held "that a named defendant’s time to remove 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." Id. at 347-48. 

In Marano, the Eighth Circuit explained that, although not

directly on point, "the legal landscape in this area has been

clarified, and perhaps the definitive answer portended, by the

Supreme Court’s decision in [Murphy Brothers]." 254 F.3d at

756. The court concluded 

that, if faced with the issue before us today, the

[Supreme] Court would allow each defendant thirty

days after receiving service within which to file a

notice of removal, regardless of when—or

if—previously served defendants had filed such

notices. See 16 James Wm. Moore et al., Moore’s

Federal Practice § 107.30[3][a][i], at 107-163 (3d ed.

2000) ("[I]t is likely that the Court may decide that

the later served defendants may not have their

removal right compromised before they are served,

and that they ought to have the opportunity to persuade the earlier served defendants to join the notice

of removal. Thus, the fairness approach may well,

and should, supercede [sic] the unanimity rule."). 

Id. at 756-57 (footnote omitted); see also Shadie v. Aventis

Pasteur, Inc., 254 F. Supp. 2d 509, 515 (M.D. Pa. 2003)

BARBOUR v. INTERNATIONAL UNION 15
("This ‘later-served defendant’ rule appears to be a necessary

corollary to the Supreme Court’s recent decision in Murphy

Brothers. . . . "); Orlick v. J.D. Carton & Son, Inc., 144 F.

Supp. 2d 337, 343 (D.N.J. 2001) ("In light of the Supreme

Court’s holding in Murphy Brothers, however, it is counterintuitive to maintain a ‘first-served defendant’ rule when the

Supreme Court would not — consistent with Murphy Brothers — begin to run a later-served defendant’s time to seek

removal until that defendant received proper service of process.") 

Agreeing with the Eighth Circuit’s reasoning, the Eleventh

Circuit concluded: 

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 . . . recognize that

equity 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 . . . [which]

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. 

Bailey, 536 F.3d at 1208 (footnote omitted).

Like the Eighth and Eleventh Circuits, we agree that Murphy Brothers, though not dispositive of the issue, lends credible and persuasive support to the propriety of the last-served

16 BARBOUR v. INTERNATIONAL UNION
defendant rule. The facts of this case illustrate the conflict

between Murphy Brothers and McKinney. Here, the International Union was served on March 20, 2008, and Local 1183

was served nine days later on March 29, 2008. Despite the

fact that Local 1212 was never served, it nonetheless joined

in the notice of removal filed on April 28, 2008 (39 days after

service on the International Union and 30 days after service

on Local 1183). "Contrary to Murphy Brothers, the firstserved defendant rule would [have] obligate[d Local 1212] to

seek removal prior to [its] receipt of formal process bringing

[it] under the court’s jurisdiction." See id. at 1208. Under

either the pure first-served defendant rule or the McKinney

rule, Local 1212’s right of removal would have been waived

by the International Union’s failure to file a notice of removal

within 30 days of being served even though it was not yet

within the court’s jurisdiction. Such prejudice to Local 1212’s

rights would violate the spirit, if not the letter, of the "bedrock

principle" that "a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s

authority, by formal process." Murphy Brothers, 526 U.S. at

347. 

The "McKinney rule" also conditions the right to removal

for subsequently served defendants upon actions taken by previously served defendants, who must have filed a notice of

removal within 30 days of having been served. See Marano,

254 F.3d at 755 n.4 (observing that the McKinney rule is

"fully in keeping with the first-served rule: it still requires that

the first-served defendant file a notice of removal within

thirty days and precludes a later-served defendant from instigating removal if more than thirty days have passed since the

first defendant was served"). As we said in McKinney, referring to the first-served defendant rule, "[w]e do not think that

Congress, in providing for removal to federal court, intended

to allow inequitable results." 955 F.2d at 927. The Sixth,

Eighth and Eleventh Circuits each discussed this inequity in

adopting the last-served defendant rule. See Bailey, 536 F.3d

at 1206 ("[W]e are convinced that both common sense and

BARBOUR v. INTERNATIONAL UNION 17
considerations of equity favor the last-served defendant

rule."); Marano, 254 F.3d at 755 ("The [Fifth Circuit in Getty

Oil] 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.")

(emphasis omitted); Brierly, 184 F.3d at 533 ("[A]s a matter

of fairness to later-served defendants, we hold that a laterserved defendant has 30 days from the date of service to

remove a case to federal district court, with the consent of the

remaining defendants."). This principle would apply as well

to Local 1183, if the failure of another party, the International

Union, could be construed as waiving Local 1183’s right to

removal.

One commentator has explained the inequity thrust upon

later-served defendants as follows:

[N]either § 1446(a) nor § 1446(b) contemplates a

scenario in which defendants are served as much as

thirty days apart, or in which an unsophisticated

defendant is served first and a more sophisticated

defendant is served later. In these instances, the

second-served defendant should be able to timely

remove and persuade the first-served defendant to

join the removal. Otherwise, the first-served defendant abridges the second-served defendant’s procedural right to a federal forum. If the first-served

defendant makes a conscious choice not to remove,

the second-served defendant has to accept that

choice. But the second-served defendant should have

a reasonable opportunity to consult with the firstserved defendant regarding possible removal. Consultation is practically impossible if service on the

second defendant occurs near the end of or after the

first defendant’s thirty-day removal period has

expired.

Stravitz, supra, at 202-203.

18 BARBOUR v. INTERNATIONAL UNION
In dissent our distinguished colleague finds "nothing inequitable about interpreting § 1446(b) in a manner that applies

its thirty-day timeframe to all defendants where removal is to

be achieved." Infra at 46. We respectfully disagree. In Murphy Brothers the Supreme Court made clear that "[i]n the

absence of service of process (or waiver of service by the

defendant), a court ordinarily may not exercise power over a

party the complaint names as defendant. 526 U.S. at 350. It

would be an odd and seemingly unjust result for a federal

court’s (removal) jurisdiction to rest upon a first-served codefendant’s deliberate or careless inaction. Despite the

Supreme Court’s admonition that "one becomes a party officially, and is required to take action in that capacity, only

upon service of a summons . . ." id. (emphasis added), the

practical effect of adhering to the dissent’s view would

require an unserved defendant, who may or may not be aware

of the lawsuit, to urge a first-served defendant with whom he

may have no relationship, to file a petition for removal. Murphy Brothers does not counsel such a result.7

The dissent criticizes the last-served defendant rule because

it only requires the last-served defendant "to act in a timely

manner," infra at 46, whereas the McKinney rule seeks to

"give effect to all the language in § 1446(b)" by requiring

"every defendant to act within thirty days of being served." Id.

(emphasis omitted). But the McKinney rule only requires

every defendant to act if every preceding defendant acted; if

the first-served defendant was dilatory, the remaining defendants cannot act at all. 

7The dissent argues that the McKinney Rule "prevents the first-served

defendant from benefitting from his inaction" by requiring him to act or

else "forfeit[ ] his right to remove the case or to consent to the removal."

Infra at 45. The fallacy in this view is that it is all defendants, not just the

first-served defendant, who is penalized by the first-served defendant’s

inaction because it is the not-yet-served or later-served defendants’ rights

that are forfeited before they have been brought within the federal court’s

jurisdiction. 

BARBOUR v. INTERNATIONAL UNION 19
The dissent also finds the McKinney Rule "less intrusive

than the Last-Served Defendant Rule on the principle that we

construe removal statutes strictly." Infra at 45. While it is axiomatic that removal statutes should be strictly construed, the

crux of our disagreement with the dissent derives from the

inherent difficulties in attempting to strictly construe a statute

that does not address the factual circumstances involved (multiple defendants). Each of the various interpretations propounded (e.g., first-served defendant rule, last-served

defendant rule, and McKinney rule) has some logical basis

and all can be said to require the addition of words to the statute. Nonetheless, we find the reasoning of the majority of our

sister circuits most closely matches Congress’ intent in adopting § 1446, an admittedly ambiguous statute. 

In conclusion, we believe the so-called "McKinney rule" is

based on non-binding dicta and the Supreme Court’s opinion

in Murphy Brothers counsels a different result. We therefore

join the Sixth, Eighth and Eleventh Circuits in adopting the

last-served defendant rule and hold that in cases involving

multiple defendants, each defendant, once served with formal

process, has thirty days to file a notice of removal pursuant to

28 U.S.C. § 1446(b) in which earlier-served defendants may

join regardless of whether they have previously filed a notice

of removal.8

Accordingly, we hold that the joint notice of removal was

timely filed in this case and affirm the judgment of the district

court in that respect. 

8

In our view, this rule does not work an injustice on a plaintiff who, by

serving the defendants as contemporaneously as possible, can minimize

any significant disruption either to their case or proceedings in the state

court. Thus, while any such burden is minimal, all defendants have their

opportunity to remove the case protected. See Stravitz, supra, at 210

("[T]he only rule that balances plaintiff-oriented policies of unanimity and

timelessness with a defendant’s procedural right to remove is the true lastserved defendant rule . . . ."). 

20 BARBOUR v. INTERNATIONAL UNION
III. Complete Preemption

A.

Having determined that the UAW’s removal notice was

timely filed, we next address whether the district court correctly determined that the Retirees’ claims were completely

preempted by federal law. As we explain below, application

of the complete preemption doctrine is the only basis by

which the UAW could establish jurisdiction in the district

court over the Retirees’ claims upon removal. If the district

court erred in that conclusion, and the Retirees’ claims were

not completely preempted, then the district court lacked subject matter jurisdiction and had no authority to rule on the

Rule 12(b)(6) motion. For the following reasons we find that

the district court lacked subject matter jurisdiction because

complete preemption is not present in this case.

Generally, removal from state court is available only in

three circumstances: (1) "if the parties are diverse and meet

the statutory requirements for diversity jurisdiction" as set

forth in 28 U.S.C. §§ 1332, 1441(b); (2) "if the face of the

complaint raises a federal question;" or (3) "if the subject matter of a putative state law claim has been totally subsumed by

federal law—such that state law cannot even treat on the subject matter . . . ." Lontz v. Tharp, 413 F.3d 435, 439-40 (4th

Cir. 2005). The UAW did not attempt to remove the case to

federal court on the basis of diversity jurisdiction and has not

argued that a federal claim is presented on the face of the

complaint. Therefore, we only consider, as the UAW has

argued and the district court determined, whether the doctrine

of complete preemption provides a basis for federal jurisdiction.

We review questions of subject matter jurisdiction

de novo, "including those relating to the propriety of

removal." Mayes v. Rapoport, 198 F.3d 457, 460

(4th Cir. 1999). The burden of demonstrating jurisBARBOUR v. INTERNATIONAL UNION 21
diction resides with "the party seeking removal."

Mulcahey v. Columbia Organic Chems. Co., 29 F.3d

148, 151 (4th Cir. 1994). We are obliged to construe

removal jurisdiction strictly because of the "significant federalism concerns" implicated. Id. Therefore,

"[i]f federal jurisdiction is doubtful, a remand [to

state court] is necessary." Id.

Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir.

2004) (en banc) (alterations in original); Payne, 439 F.3d at

203 ("For questions concerning removal to federal court, our

standard of review is de novo."). "Under what has become

known as the well-pleaded complaint rule, § 1331 federal

question jurisdiction is limited to actions in which the plaintiff’s well-pleaded complaint raises an issue of federal law

. . . ." In re Blackwater Sec. Consulting, LLC, 460 F.3d 576,

584 (4th Cir. 2006). "The rule makes the plaintiff the master

of the claim; he or she may avoid federal jurisdiction by

exclusive reliance on state law." Caterpillar Inc. v. Williams,

482 U.S. 386, 392 (1987); see also Beneficial Nat’l Bank v.

Anderson, 539 U.S. 1, 6 (2003) ("As a general rule, absent

diversity jurisdiction, a case will not be removable if the

Complaint does not affirmatively allege a federal claim.").

"The doctrine of complete preemption provides a corollary to

the well-pleaded complaint rule. This doctrine recognizes that

some federal laws evince such a strong federal interest that,

when they apply to the facts underpinning the plaintiff’s statelaw claim, they convert that claim into one arising under federal law." In re Blackwater, 460 F.3d at 584.

Our roadmap for determination of the issue of complete

preemption is provided by our decision in Lontz, which states

the applicable principles clearly and concisely.

We have noted our obligation "to construe

removal jurisdiction strictly because of the ‘significant federalism concerns’ implicated" by it. Maryland Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d

22 BARBOUR v. INTERNATIONAL UNION
255, 260 (4th Cir. 2005) (quoting Mulcahey, 29 F.3d

at 151). "Federalism concerns strongly counsel

against imputing to Congress an intent to displace a

whole panoply of state law . . . absent some clearly

expressed direction." Custer v. Sweeney, 89 F.3d

1156, 1167 (4th Cir. 1996) (internal quotes omitted).

Consistent with these principles, we have recognized

that state law complaints usually must stay in state

court when they assert what appear to be state law

claims. See, e.g., Harless v. CSX Hotels, Inc., 389

F.3d 444, 450 (4th Cir. 2004); King, 337 F.3d at 424;

Darcangelo v. Verizon Communications, Inc., 292

F.3d 181, 186 (4th Cir. 2002); Cook v. Georgetown

Steel Corp., 770 F.2d 1272, 1274 (4th Cir. 1985).

The presumption, in other words, is against finding

complete preemption. Custer, 89 F.3d at 1167.

But that presumption is rebuttable, because federal

law occasionally "displace[s] entirely any state cause

of action." Franchise Tax Board, 463 U.S. at 23.

When it does, federal law then "provide[s] the exclusive cause of action for such claims," and therefore

"there is . . . no such thing as a state-law claim" in

the regulated area. Beneficial, 539 U.S. at 11, 123 S.

Ct. 2058. The doctrine of complete preemption thus

prevents plaintiffs from "defeat[ing] removal by

omitting to plead necessary federal questions." Franchise Tax Board, 463 U.S. at 22, 103 S. Ct. 2841. It

thereby ensures compliance with congressional

intent that federal courts be available to resolve certain claims which are peculiarly national in scope.

Defendants’ burden, then, is to demonstrate that a

federal statute indisputably displaces any state cause

of action over a given subject matter. 

In assessing whether defendants have carried their

burden, we may not conflate "complete preemption"

with "conflict" or "ordinary" preemption. While

BARBOUR v. INTERNATIONAL UNION 23
these two concepts are linguistically related, they are

not as close kin jurisprudentially as their names suggest. Complete preemption is a "jurisdictional doctrine," while ordinary preemption simply declares

the primacy of federal law, regardless of the forum

or the claim. Sonoco Prods., 338 F.3d at 370-71.

Ordinary preemption has been categorized as a federal "defense to the allegations." Caterpillar, 482

U.S. at 392, 107 S. Ct. 2425. And as a mere defense,

the "preemptive effect of a federal statute . . . will

not provide a basis for removal." Beneficial, 539

U.S. at 6, 123 S. Ct. 2058 (internal citations omitted). See also Rivet, 522 U.S. at 475-76, 118 S. Ct.

921; Caterpillar, 482 U.S. at 392-93, 107 S. Ct.

2425; Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66,

107 S. Ct. 1542, 95 L.Ed.2d 55 (1987) ("even an

‘obvious’ pre-emption defense does not, in most

cases, create removal jurisdiction"); Franchise Tax

Board, 463 U.S. at 14, 28, 103 S. Ct. 2841. Even if

preemption forms the very core of the litigation, it is

insufficient for removal. Caterpillar, 482 U.S. at

393, 107 S. Ct. 2425.

Lontz, 413 F.3d at 440-41 (alterations in original).

In the case at bar, we believe the district court and the

UAW have conflated complete preemption and ordinary preemption.9

 Although the UAW’s claim that the duty of fair representation may be a defense of federal law to the Retirees’

claims, it is a defense of ordinary preemption and not a case

where Congress has clearly and unequivocally "displaced any

state cause of action."10

9We agree with the Lontz Court that "[i]f this distinction amounted to

deciding which court had the honor of dismissing the case, it might appear

to be a dispute over trifles," but we, too, "think more is at stake." 413 F.3d

at 442. 

10In the district court’s original order granting the motion to dismiss, it

did so "for the reasons explained and discussed at length . . . in Taylor v.

24 BARBOUR v. INTERNATIONAL UNION
B.

The UAW bears the heavy burden of proving that § 9(a) of

the NLRA "indisputably displaces" the claims set forth in the

Retirees’ amended complaint and "the presumption . . . is

against finding complete preemption." Lontz, 413 F.3d at 441,

440 (citing Custer v. Sweeney, 89 F.3d 1156, 1167 (4th Cir.

1996)). "Ordinary preemption has been categorized as a federal ‘defense to the allegations,’" Lontz, 413 F.3d at 440 (citing Caterpillar, 482 U.S. at 392), and "declares the primacy

of federal law, regardless of the forum or the claim." Id. (citing Sonoco Prods., 338 F.3d at 370-71) (emphasis added).

Because ordinary preemption is merely a defense, it does not

"provide a basis for removal." Id. (quoting Beneficial, 539

U.S. at 6). 

[I]t is now settled law that a case may not be

removed to federal court on the basis of a federal

defense, including the defense of pre-emption, even

if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue.

Caterpillar, 482 U.S. at 393 (citation omitted) (second

emphasis added); In re Blackwater, 460 F.3d at 584

("[A]ctions in which defendants merely claim a substantive

federal defense to a state-law claim do not raise a federal

question.") (citing Louisville & Nashville R.R. Co. v. Mottley,

211 U.S. 149, 152 (1908)).

In contrast, complete preemption means that "there is ‘no

such thing’ as the state action." Lontz, 413 at 441 (citing BenGiant Food, Inc., 438 F. Supp. 2d 576 (D. Md. 2006)." However, that case

is simply inapposite to the case at bar. In Taylor, the plaintiffs specifically

pled "breach of the duty of fair representation," which clearly embraced

§ 9(a) of the NLRA. 483 F. Supp. 2d at 585. There is no such pleading in

the case before us and the district court’s opinion in Taylor has no application to this case. 

BARBOUR v. INTERNATIONAL UNION 25
eficial, 539 U.S. at 11). This Court has made clear that the primary consideration in finding complete preemption is whether

Congress intended for the statute to entirely displace state law

— an intent that must be clear in the text of the statute. Id.;

see also Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 230

(4th Cir. 1993). Again, our opinion in Lontz precisely explains

what the UAW was required to show in order to establish subject matter jurisdiction in the district court by virtue of the

complete preemption of the Retirees’ claims.

Recognizing that complete preemption undermines the plaintiff’s traditional ability to plead under

the law of his choosing, the Supreme Court has made

clear that it is "reluctant" to find complete preemption. Metro. Life, 481 U.S. at 65. The Court has, in

fact, found complete preemption in only three statutes. See Beneficial, 539 U.S. at 10-11, 123 S. Ct.

2058 (National Bank Act); Metro. Life, 481 U.S. at

66-67, 107 S. Ct. 1542 (ERISA § 502(a)); Avco

Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 560, 88 S. Ct. 1235, 20 L.Ed.2d

126 (1968) (Labor Management Relations Act

("LMRA") § 301). Unsurprisingly, therefore, the

Court has articulated exacting standards that must be

met before it will find complete preemption. Most

notably, the congressional intent that state law be

entirely displaced must be clear in the text of the

statute. See Metro. Life, 481 U.S. at 65-66, 107 S. Ct.

1542. 

In fact, the Court in Beneficial emphasized that

the preempting statute must not only create a federal

cause of action, but must also show that Congress

intended it to "provide the exclusive cause of action"

for claims of overwhelming national interest. Beneficial, 539 U.S. at 9, 11, 123 S. Ct. 2058 (emphasis

added).

26 BARBOUR v. INTERNATIONAL UNION
Lontz, 413 F.3d at 441. 

Thus, for complete preemption to apply, it is not sufficient

for a defendant to show the plaintiff’s state law claim could

have been made as a federal law claim. Otherwise, the wellpleaded complaint rule would be turned on its head and

removal jurisdiction would explode exponentially. Instead, a

removing defendant must show not only that the defendants’

state law claim is cognizable as a federal claim, but that the

Congress clearly intended the federal claim to "‘provide the

exclusive cause of action’ for claims of overwhelming

national interest." Id. at 441 (citing Beneficial, 539 U.S. at

11).

It is important to keep in context the claims actually pled

by the Retirees. Significantly, the Retirees plead no claim

against Chrysler, their employer. Neither do they plead a

breach of a collective bargaining agreement or of any duty

owed by the UAW as their bargaining agent. Furthermore,

there is no allegation by the Retirees which makes any term

in a collective bargaining agreement relevant to their state law

claims.

Instead, the Retirees plead typical state law causes of action

for violation of a fiduciary duty brought about by their membership in an organization. These common law duties are the

basis, historically, of many causes of action in state courts and

do not inherently represent an "overwhelming national interest."

In the case at bar, the UAW directs us to no statutory language in § 9(a) of the NLRA, nor to any legislative history,

showing a clear intent by the Congress that all state law

claims relating to all fiduciary duties owed to union members

by virtue of their union membership are exclusively federal

claims under § 9(a). On its face, § 9(a) simply does not reveal

an intent to always foreclose state law claims for breach of

BARBOUR v. INTERNATIONAL UNION 27
fiduciary duty arising solely on the basis of union membership.

In McCormick v. AT & T Technologies, Inc., 934 F.2d 531

(4th Cir. 1991), we explained in the related context of the

LMRA that "[s]ection 301 not only provides federal courts

with jurisdiction over employment disputes covered by collective bargaining agreements, [it] also directs federal courts

to fashion a body of federal common law to resolve such disputes." Id. at 534 (emphasis added). No such congressional

imperative exists with respect to § 9(a) of the NLRA because

the duty of fair representation is, itself, "judicially created."

One would not expect to find a clear statement of congressional intent regarding a judicially created duty. See Int’l Bhd. of

Elec. Workers v. Foust, 442 U.S. 42, 47 (1979) ("The right to

bring unfair representation actions is judicially ‘implied from

the statute and the policy which it has adopted . . . .’") (quoting Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 204

(1944)); Wrobbel v. Asplundh Constr. Corp., 549 F. Supp. 2d

868, 875 (E.D. Mich. 2008) ("[T]he fact that the federal duty

of fair representation is a judicial creation tends to undermine

the argument that Congress intended § 9(a) to supplant state

law with a federal cause of action.").

Moreover, the Supreme Court, by way of illustration, has

stated that "the union’s duty of fair representation is implied

from its status as the exclusive bargaining representative of

the bargaining unit workers." Marquez v. Screen Actors

Guild, Inc., 525 U.S. 33, 48 (1998) (emphasis added). Thus,

without an express intent to preempt state law, the UAW

nonetheless asks us to find that Congress implicitly intended

to preempt state law based on duties that are themselves

implied from the alleged preemptory statute. This is one

implication too many. A finding of complete preemption so

as to establish federal subject matter jurisdiction in these circumstances would undermine established concepts of federalism, not to mention contradict the clear precedent of this

Court that "strongly counsel[s] against imputing to Congress

28 BARBOUR v. INTERNATIONAL UNION
an intent to displace ‘a whole panoply of state law[’]. . .

absent some clearly expressed direction." Custer, 89 F.3d at

1167; Lontz, 413 F.3d at 440.

In the absence of a statutory basis for complete preemption

in this case, the UAW then relies on opinions from two other

circuits to support their complete preemption argument. We

find these cases distinguishable and unavailing.

In Richardson v. United Steelworkers, 864 F.2d 1162 (5th

Cir. 1989), the employees sued their union in Texas state

court for failing to warn them that their employer had a statutory right to replace them if they went on strike. Id. at 1164.

In their initial pleading the employees asserted that the union

"acted as bargaining agent for [them]" and, as such, "had a

duty to advise them of measures which their employer could,

and in reasonable probability would, take" in the event they

rejected their employer’s final offer and went on strike. Id.

Initially, the union removed the case to federal court on the

basis that jurisdiction existed pursuant to § 301 of the LMRA,

29 U.S.C. § 185 et seq. With leave of court, the union subsequently filed an amended removal petition asserting jurisdiction based on the fact that the plaintiffs’ claims were actually

"for breach of its duty of fair representation under the

NLRA." 864 F.2d at 1164. The employees filed a motion to

remand the case, which the district court denied. Id. at 1165.

On appeal, the Fifth Circuit relied upon the plaintiffs’ allegations that "the Union had a duty to advise them of [their

employer’s] right to replace them if they went on strike," and

"that this duty arose from the Union’s status as their collective bargaining agent." Id. (emphasis added). The court specifically noted that the employees’ "assert[ed] no other source

of this duty." Id. Stating that "[t]he Union’s right to act as

plaintiffs’ bargaining agent is conferred by the NLRA," the

court held "that the duties corresponding to this right conferred by federal labor law [were] . . . defined solely by fedBARBOUR v. INTERNATIONAL UNION 29
eral labor law" and thus completely preempted state law. Id.

"As a result of this complete preemption of state law . . . the

district court had removal jurisdiction over these actions." Id.

Critical to the court’s holding in Richardson was the fact

that the "[p]laintiffs simply alleged that the Union was ‘the

bargaining agent for Plaintiffs’ and that it ‘acted as bargaining

agent for Plaintiffs in connection with their employment

. . . ." Id. According to the court, "these statements clearly

imply that the Union was the exclusive bargaining agent

under the NLRA for the collective bargaining unit of which

plaintiffs . . . were members, and the subsequent briefs and

motions of all parties, here and below, in fact treat the Union

as such." Id. Of critical importance for our analysis is the

Fifth Circuit’s distinction between the case it considered and

one pled differently under state law:

this case . . . does not present the question of whether

the Union was subject to "an independent state-law

duty of care . . . arising simply from the relationship

of a union to its members." Plaintiffs here allege a

duty arising from the collective bargaining agent’s

relationship under the NLRA with the bargaining

unit members, who may or may not be union members. Indeed, plaintiffs’ original petition does not

even allege that plaintiffs are or were members of

the Union. Nor does this case involve state law

actions that are not preempted because the activity

complained of touches interests "deeply rooted in

local feeling" or is only a "peripheral concern of the

NLRA." 

Id. at 1167 (internal citations omitted) (emphases added).

Directly contrary to the factual basis pled in Richardson,

the Retirees’ amended complaint states that "[a]s a result of

their union membership, the UAW owed [them] duties of loyalty, fidelity and full disclosure of all material facts." J.A. 26.

30 BARBOUR v. INTERNATIONAL UNION
In fact, these are the only duties the plaintiffs allege they were

owed by the UAW in the context of their tort claims. Unlike

the plaintiffs in Richardson, who "did not allege any breach

of a state tort duty that exists independently of the NLRAestablished collective bargaining relationship, which is the

central concern of the NLRA," id. at 1167, the Retirees have

alleged "an independent state-law duty of care arising simply

from the relationship of a union to its members." See id.

(quoting Int’l Bd. of Elec. Workers v. Hechler, 481 U.S. 851,

862 n.5 (1987)). Thus, we conclude Richardson supports the

Retirees’ argument against a finding of complete preemption

and is of no assistance to the UAW. 

In the other case relied upon by the UAW, BIW Deceived

v. Local S6, Indus. Union of Marine and Shipbuilding Workers, 132 F.3d 824 (1st Cir. 1997), tradesmen went to Maine

to interview for employment with Bath Iron Works. Id. at

827. Union representatives participated in the interviews pursuant to a collective bargaining agreement and, according to

the tradesmen, assured them of continued employment due to

Bath’s great need for their skills. Id. Despite these assurances,

however, Bath laid off the tradesmen several months after

they began their employment. Id. Not surprisingly, the workers filed suit against the union in state court, alleging, among

other things, claims for negligence and fraudulent misrepresentation. Id. The union removed the case to federal court on

the basis that the plaintiffs’ claims were barred by § 9(a) of

the NLRA and/or § 301 of the LMRA. 

On appeal, the First Circuit determined 

that [duty of fair representation] preemption operates

in much the same fashion as [LMRA] section 301

preemption. . . . [W]e hold that a district court possesses federal question jurisdiction when a complaint, though garbed in state-law raiment,

sufficiently asserts a claim implicating the duty of

fair representation.

BARBOUR v. INTERNATIONAL UNION 31
Id. at 831-32 (internal citations omitted). The court then

resorted to the "artful pleading doctrine" to "conclude without

serious question that the instant complaint reveals a colorable

question of federal law and that, therefore, the district court

did not err when it denied the motion to remand." Id. at 833.

We find the First Circuit’s reasoning unpersuasive for several

reasons. 

First, in support of its holding, the district court cited Richardson, which, for the reasons set forth above, specifically

excepted suits under state law, like that of the Retirees, from

the reach of complete preemption. Second, mindful of our

obligation to "strictly construe removal jurisdiction," Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148,

151 (4th Cir. 1994), we are not convinced, as we noted above,

that the "manifestation of congressional will" with respect to

the § 9(a) duty of fair representation applies with the same

clarity as under § 301 of the LMRA in cases such as that now

before us. Lastly, we note the First Circuit found, without

citation to the text of the statute or any of its legislative history, an implication of complete preemption for an implied

duty of fair representation. See 132 F.3d at 831-33. This simply does not adhere to the Lontz requirement that "congressional intent that state law be entirely displaced must be clear in

the text of the statute." 413 F.3d at 441. 

Keeping in mind that any reasonable doubts must be

resolved against complete preemption, id., we cannot conclude, as the UAW urges, that every state law cause of action

based on a misrepresentation or negligent omission made by

a union to some or all of its members must necessarily flow

from exclusive federal duties under § 9(a). Further, in view of

the lack of any clear expression of Congressional intent to

preempt such state law claims, we cannot conclude that § 9(a)

of the NLRA "wholly displaces" every state law cause of

action in circumstances such as before us in the case at bar.

Beneficial, 539 U.S. at 8. Thus, we must conclude that the

doctrine of complete preemption does not apply in this case.

32 BARBOUR v. INTERNATIONAL UNION
Consequently, there was no basis for removal of this case to

the district court under 28 U.S.C. § 1441 and the district court

lacked jurisdiction. The district court erred in concluding otherwise and in not granting the Retirees’ motion to remand the

case to state court.11,12

11In the event that we found, as we have, that the duty of fair representation in § 9(a) does not completely preempt the Retirees’ state law claims,

the UAW argued in the alternative that the claims are completely preempted by § 301 of the LMRA. Preemption under § 301 can only occur

when claims are "founded directly on rights created by collectivebargaining agreements" or are "substantially dependent on analysis of a

collective-bargaining agreement." Caterpillar Inc., 482 U.S. at 394 (internal quotation marks omitted). 

The UAW bases its argument on the following allegations made by two

of the retiree plaintiffs: that they "contacted their Union representatives

and asked to grieve or appeal the UAW’s false statements to them regarding the offer of a retirement package and retroactive nature of any package

subsequently offered. Both . . . were informed by Union officers that no

grievance and/or appeal could be filed regarding this matter." J.A. 51-52.

These allegations, it is argued, "requires interpretation of the CBA."

Appellee’s Br. at 39. We disagree. 

As the Retirees point out, their complaint does not charge the UAW

with negligence by denying access to a grievance procedure or with negligent representation during a grievance proceeding. The allegations, which

appear in the "fact" section of the complaint, merely explain what inquiries some of the plaintiffs made in response to learning they were ineligible for the incentive packages. Unlike the situation in BIW Deceived, in

which the union stood "accused of violating a duty of care that flowed to

it pursuant to the [collective bargaining agreement]," 132 F.3d at 833, this

record does not indicate any need to analyze the terms of a collective bargaining agreement in connection with the Retirees’ claims. 

In sum, the Retirees’ state law claims for negligence and negligent misrepresentation are not preempted by § 301. 

12We express no view as to the application of ordinary preemption as

a factual defense which the UAW may well raise in the state court if it be

so advised. "We [also] express no view as to whether such claims on the

merits are preempted by federal law, as this is a question for state courts

to resolve." Lontz, 413 F.3d at 438. 

BARBOUR v. INTERNATIONAL UNION 33
IV.

In conclusion, we adopt the last-served defendant rule as

the law of this circuit and affirm the judgment of the district

court that the defendants timely filed the notice of removal.

Further, we hold that the district court was without subject

matter jurisdiction over the Retirees’ claims because the doctrine of complete preemption does not apply here to create a

basis for removal under 28 U.S.C. § 1441. Accordingly, we

reverse the judgment of the district court granting the UAW’s

motion to dismiss and remand this case to the district court

with instructions to remand the case to the Maryland state

court.

AFFIRMED IN PART; VACATED AND

REMANDED WITH INSTRUCTIONS

HAMILTON, Senior Circuit Judge, concurring in the judgment in part and dissenting in part:

Over seventeen years ago, in McKinney v. Board of Trustees of Mayland Community College, 955 F.2d 924 (4th Cir.

1992), this court allowed two defendants, who were not

served within thirty days of the date the first three defendants

were served, to join a removal petition that was filed by the

other ten defendants within thirty days of the date the first

three defendants were served. Id. at 926, 928. In so allowing,

we rested our decision on the premise that, in removal cases

involving multiple defendants, a removal petition must be

filed within thirty days of the date the first-served defendant

is served. Id. at 926. Under McKinney, the defendants’

removal petition in this case is untimely, as it was filed more

than thirty days after the International, the first-served defendant in this case, was served.

Fortunately for the defendants, the majority today jettisons

McKinney, choosing instead to adopt the so-called "LastServed Defendant Rule," a rule it believes will best serve

34 BARBOUR v. INTERNATIONAL UNION
removal when multiple defendants are involved. The LastServed Defendant Rule is totally inconsistent with our decision in McKinney, as the rule allows a removal petition to be

filed more than thirty days after the date the first-served

defendant was served. Because a panel of this court cannot

overrule a prior panel, Mentavlos v. Anderson, 249 F.3d 301,

312 n.4 (4th Cir. 2001), I believe we are bound by our precedent in McKinney. Moreover, to avoid the dictates of McKinney, the majority takes language from the Supreme Court’s

decision in Murphy Brothers, Inc. v. Michetti Pipe Stringing,

Inc., 526 U.S. 344 (1999), and uses it out of context to conclude that this "no[n-] dispositive" case, ante at 16, effectively

overrules McKinney. With all due respect to the majority,

Murphy Brothers does not overrule McKinney, because: (1)

Murphy Brothers did not involve multiple defendants; and (2)

the concerns of Murphy Brothers are not implicated in this

case. Accordingly, I dissent from the majority’s decision concluding that the defendants’ petition for removal was timely

filed under the Last-Served Defendant Rule. However, I concur in the majority’s judgment to the extent it remands the

case to state court.

I

A

"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute,

. . . which is not to be expanded by judicial decree." Kokkonen

v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377

(1994). We presume "that a cause lies outside this limited

jurisdiction, . . . and the burden of establishing the contrary

rests upon the party asserting jurisdiction." Id. Removal statutes, in particular, must be strictly construed, inasmuch as the

removal of cases from state to federal court raises significant

federalism concerns. Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100, 108-09 (1941). Doubts about the propriety of

removal should be resolved in favor of remanding the case to

BARBOUR v. INTERNATIONAL UNION 35
state court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816

(4th Cir. 2004) (en banc); Hartley v. CSX Transp., Inc., 187

F.3d 422, 425 (4th Cir. 1999).

Section 1441(a) of Title 28 provides that "the defendant or

the defendants" may seek to remove "any civil action brought

in a State court of which the district courts of the United

States have original jurisdiction." 28 U.S.C. § 1441(a). Section 1446 of Title 28 describes the appropriate removal procedure to invoke federal jurisdiction, and requires the defendant

seeking removal to file a timely removal petition stating the

grounds for removal with the appropriate federal district

court. Id. § 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

. . . .

Id. § 1446(b). The thirty-day window for removal is designed

to prevent "undue delay in removal and the concomitant waste

of state judicial resources." Lovern v. Gen. Motors Corp., 121

F.3d 160, 163 (4th Cir. 1997).

Unlike § 1446(a), § 1446(b) does not speak in terms of

multiple defendants. However, it is well-settled in cases

involving multiple defendants that "all of the defendants must

agree to the removal of the state court action," Creasy v. Coleman Furniture Corp., 763 F.2d 656, 660 (4th Cir. 1985), and,

consequently, all served defendants must join in the removal

petition. Abrego Abrego v. The Dow Chemical Co., 443 F.3d

676, 681 (9th Cir. 2006).

The omission of the term "defendants" in § 1446(b) has led

to a circuit split over whether every defendant in a multipledefendant case has a right to seek removal within thirty days

36 BARBOUR v. INTERNATIONAL UNION
of service or whether the thirty-day window begins to run

from receipt of service by the first-served defendant. Our

decision in McKinney has been recognized as an intermediate

rule (the McKinney Intermediate Rule), between the FirstServed Defendant Rule (adopted by the Fifth Circuit) on the

one hand and the Last-Served Defendant Rule (adopted by the

Sixth, Eighth, and Eleventh Circuits) on the other. See, e.g.,

Guyon v. Basso, 403 F. Supp. 2d 502, 506-07 (E.D. Va.

2005). And with one exception, district courts in this circuit

have faithfully applied the McKinney Intermediate Rule. See

Ford v. Baltimore City Dep’t of Soc. Servs., No. 06-2134,

2006 WL 3324896, at *1-2 (D. Md. Nov. 13, 2006) (unpublished) (following McKinney Intermediate Rule); Guyon, 403

F. Supp. 2d at 507-10 (same); Superior Painting & Contracting Co., Inc. v. Walton Tech., Inc., 207 F. Supp. 2d 391, 392-

93 (D. Md. 2002) (same); Branch v. Coca-Cola Bottling Co.,

83 F. Supp. 2d 631, 634-36 (D.S.C. 2000) (same); Bazilla v.

Belva Coal Co., 939 F. Supp. 476, 478 (S.D. W. Va. 1996)

(same); Beasley v. Goodyear Tire & Rubber Co., 835 F. Supp.

269, 272 (D.S.C. 1993) (same); but see Ratliff v. Workman,

274 F. Supp. 2d 783, 786-90 (S.D. W. Va. 2003) (declining

to follow McKinney Intermediate Rule).

Stated succinctly, the First-Served Defendant Rule requires

a removal petition to be filed within thirty days of service on

the first-served defendant and requires all defendants to join

the removal petition within the first-served defendant’s thirtyday window. Like the First-Served Defendant Rule, the

McKinney Intermediate Rule requires a removal petition to be

filed within the first-served defendant’s thirty-day window,

but gives later-served defendants thirty days from the date

they were served to join the removal petition. The LastServed Defendant Rule gives each defendant his own thirtyday window; thus, under this rule, the thirty-day window can

expire for all but the last-served defendant, as long as the lastserved defendant files a timely removal petition within thirty

days from the date of service on that defendant.

BARBOUR v. INTERNATIONAL UNION 37
B

In choosing to reject the McKinney Intermediate Rule, the

majority posits that the rule is premised on dicta, primarily

from Footnote 3 of the McKinney decision. However, Footnote 3 simply states the necessary corollaries that arise from

the McKinney court’s adoption of the principle that a removal

petition must be filed within thirty days of service on the firstserved defendant. Thus, although the inclusion of Footnote 3

in the McKinney decision arguably was not necessary to the

decision, it provides by way of further explanation what are

the consequences of embracing a rule that requires the

removal petition to be filed within thirty days of service on

the first-served defendant.

In McKinney, a group of dismissed employees of Mayland

Community College sued the college’s board of trustees in

their individual and official capacities in North Carolina state

court, alleging unlawful discharge. 955 F.2d at 925. Three of

the twelve defendants were served on April 25, 1988, while

eight others were served on May 19, 1988. Id. The three

members of the first group and seven of the eight from the

second group filed for removal on May 25, 1998, thirty days

after service on the first three. Id. The defendants could not

find the eighth defendant in the second group to obtain her

consent to the removal petition. Id. The plaintiffs served the

final, twelfth defendant after the filing of the removal petition.

Id. The eighth and twelfth defendants joined in the petition for

removal on June 20, 1998, which was the thirtieth day from

the time of service on the eighth defendant and well within

the time limit for the twelfth defendant, but more than thirty

days after the first set of three defendants was served. Id.

In moving to remand the case to state court, the plaintiffs

argued that the defendants were required to consent to the

removal petition within thirty days of service on the first

group of defendants. Id. The district court rejected that contention, holding that individual defendants have thirty days

38 BARBOUR v. INTERNATIONAL UNION
from the time they are served with process or with a complaint to join in an otherwise valid removal petition. Id.

The issue in McKinney was whether the eighth defendant

(referred to as "B") had thirty days from the date he was

served to join the removal petition or whether he had to join

the removal petition within the thirty days of service on the

first three defendants (referred to as "A"). Id. at 926. Footnote

3 of the opinion appears at this point, setting forth the necessary corollaries to our later adoption of the principle that a

removal petition must be filed within thirty days of service on

the first-served defendant: 

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 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.

Id. at 926 n.3.

Turning to the issue before the court, we began our analysis

in McKinney by noting that, since § 1446(b) contemplates

only one defendant, the language of the section does not provide any guidance when multiple defendants are served on

different days. Id. at 926. We then observed that the legislative history of § 1446(b) does not address the situation where

multiple defendants are served on different days. Id. As a

result, we turned to the circuit case law and noted that the

Fifth Circuit was the only circuit to address the issue of

removal in multiple-defendant cases. Id.

In Getty Oil Corporation v. Insurance Company of North

America, 841 F.2d 1254 (5th Cir. 1988), three defendants

were served, the first on September 3, the second on SeptemBARBOUR v. INTERNATIONAL UNION 39
ber 5, and the third on September 24. Id. at 1256. The first

and second defendants petitioned for removal on September

26, but the third defendant joined the petition on October 24,

which was thirty days after it was served but fifty-one days

after the first defendant was served. Id. The Getty Oil court

held that: (1) a removal petition must be filed within thirty

days of the date of service on the first-served defendant and

(2) a later-served defendant must join the removal petition "no

later than thirty days from the day on which the first defendant was served." Id. at 1263.

In addressing Getty Oil’s holdings in McKinney, we first

noted our explicit agreement with Getty Oil’s first holding,

stating that the first-served defendant "clearly must petition

for removal within thirty days." McKinney, 955 F.2d at 926

(emphasis added). Following our agreement with the first

holding of Getty Oil, we proceeded to address the question

raised by Getty Oil’s second holding, that is, the question of

whether a later-served defendant must join the petition within

thirty days of the date of service on the first-served defendant,

as the court held in Getty Oil, or within thirty days of service

on the later-served defendant. Id. at 926-28. In rejecting the

second holding of Getty Oil, we first observed that it would

be "inequitable" to require a later-served defendant to join a

timely filed removal petition within thirty days of the date of

service on the first-served defendant. Id. at 927. 

We next rejected the plaintiffs’ argument that it should be

entitled to know within a prescribed period of time whether

the case will proceed in state or federal court, noting first that,

if the plaintiffs wanted to know which court they will be in

at the earliest possible date, they need only to make sure that

all defendants are served at about the same time. Id. Second,

we noted that the plaintiffs’ entitlement was no greater than

the defendant’s right to remove a case that could be heard in

federal court. Id.

Finally, we considered a policy concern, which was not

present when Getty Oil was decided. In 1988, Congress

40 BARBOUR v. INTERNATIONAL UNION
amended § 1446(a) to make petitions for removal subject to

Rule 11 of the Federal Rules of Civil Procedure. Id. at 928.

We observed that, as amended, § 1446(a) is a further reason

to allow all defendants a full thirty days to investigate the

appropriateness of removal. Id. Otherwise, a later-served

defendant faced a Hobson’s Choice: either to join hurriedly in

a petition for removal and face possible Rule 11 sanctions or

to forego removal. Id. In our view, Congress surely did not

intend to impose such a choice on a later-served defendant. Id.

The majority chooses to reject the McKinney Intermediate

Rule essentially by isolating its examination of the case to

Footnote 3 and characterizing the footnote as dicta. Whether

Footnote 3 is dicta is really beside the point and of no material importance. The critical point of the McKinney decision

is that the McKinney court explicitly embraced Getty Oil’s

first holding that a petition for removal must be filed within

thirty days of the date the first-defendant is served. Id. at 926.

Once the McKinney court so embraced, Footnote 3 provides,

by way of explanation, two necessary corollaries to our agreement with Getty Oil’s first holding. Both such corollaries arise

where the later-served defendant is served more than thirty

days after the first-served defendant is served. In the first necessary corollary, removal is permitted if the first-served

defendant petitions for removal within thirty days of being

served and the later-served defendant joins the petition for

removal within thirty days of being served. Id. at 926 n.3. In

the second necessary corollary, removal is not permitted if the

first-served defendant does not petition for removal within

thirty days of being served. Id.

The majority states that Footnote 3 of McKinney "constitutes non-binding dicta." Ante at 13. According to the majority, in McKinney, there was a timely petition for removal filed

within thirty days of service on the first-served defendant(s)

and in the present case the first-served defendant did not so

petition. From this fact, the majority concludes that "the issue

of initial removal by a defendant other than the first-served

BARBOUR v. INTERNATIONAL UNION 41
defendant was simply not before the court in McKinney." Ante

at 14. Because the issue of initial removal was not before the

McKinney court, the majority goes on to state that "the

McKinney court’s expression in Footnote 3 regarding the

application of § 1446 in the circumstance where the firstserved defendant had not timely filed a notice of removal was

gratuitous," and thus, Footnote 3 is "classic judicial dictum."

Ante at 14.

The obvious flaw in the majority’s analysis is its initial

premise—that the McKinney court did not address the question of initial removal. Clearly, the McKinney court did, when

it agreed with the Getty Oil court’s first holding that the firstserved defendant must petition for removal with thirty days of

being served. This agreement with the Getty Oil court’s first

holding was critical to the decision, in that it closed the door

to a reading of § 1446(b) that would have allowed later-served

defendants to petition for removal within thirty days of being

served when the first-served defendant had not. Cf. Seminole

Tribe of Florida v. Florida, 517 U.S. 44, 66-67 (1996) ("We

adhere in this case, however, not to mere obiter dicta, but

rather to the well-established rationale upon which the Court

based the results of its earlier decisions. When an opinion

issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are

bound.").

To get around the obvious flaw in its analysis, the majority

out of necessity describes our adoption of Getty Oil’s first

holding as dicta as well. The problem with this description is

that McKinney outlined what were the requirements for

removal in multiple-defendant cases, just like a court outlines

the requirements for a plaintiff to maintain a certain cause of

action. The first requirement outlined in McKinney was that

a timely removal petition must be filed within thirty days of

the date the first-served defendant is served. Of course, the

McKinney court could have chosen a very different analytical

path, holding that such a removal petition need not be filed

42 BARBOUR v. INTERNATIONAL UNION
within that time, i.e., within thirty days of the date any of the

defendants were served. However, the McKinney court closed

that very door with its adoption of Getty Oil’s first holding.

In sum, none of the defendants sought to remove the case

within thirty days of the date the International was served.

Consequently, under McKinney, removal was improper.

C

In its opinion, the majority also relies upon the Supreme

Court’s decision in Murphy Brothers and suggests that this

"no[n-] dispositive" case, ante at 16, mandates that we reject

our McKinney Intermediate Rule. Murphy Brothers did not

involve multiple defendants. It involved a single defendant,

and the issue to be decided was what service event triggered

the running of the thirty-day window. The plaintiff argued

that the January 29, 1996 service of a faxed courtesy copy of

the complaint triggered the running of the thirty-day window;

the defendant countered that February 12, 1996, the date of

formal service in accordance with local law, triggered the running of the thirty-day window. 526 U.S. at 348. The Court

held that a defendant’s time to remove "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." Id. The Court

did not address, or even mention, the First-Served Defendant

Rule, the McKinney Intermediate Rule, or the Last-Served

Defendant Rule, or, for that matter, consider how to calculate

the period for removal in a case involving multiple defendants

served at different times. Indeed, Murphy Brothers was based

on the principle that "[a]n 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." Id. at 347. That principle is not threatened or even

implicated in this case. The McKinney Intermediate Rule simply does not require or obligate later-served defendants to

BARBOUR v. INTERNATIONAL UNION 43
engage in litigation prior to service. Moreover, completely

different considerations come into play in cases involving

multiple defendants. Under such circumstances, it is unfathomable, absent an en banc decision from this court or a

Supreme Court case explicitly or implicitly overruling the

McKinney Intermediate Rule, that Murphy Brothers mandates

that we reject our McKinney Intermediate Rule.

D

My analysis need not proceed further, as it is clear at this

point that removal was improper under our decision in

McKinney and that Murphy Brothers did not, explicitly or

implicitly, overrule McKinney. However, I offer these brief

comments concerning what appears to be the real rub in the

case, the majority’s disdain for the McKinney Intermediate

Rule. Such disdain appears to emanate from the court’s view

that the McKinney Intermediate Rule is inequitable, because

it allows earlier-served defendants to decide whether a case

remains in state court or is removed to federal court. Ante at

17 (noting that McKinney sought to avoid inequitable results).

However, our embracement of the McKinney Intermediate

Rule is not as off-the-wall as the majority would have us

believe. The McKinney Intermediate Rule is an inevitable feature of a court of limited jurisdiction. Where a removal petition is not filed within thirty days of service on the firstserved defendant, the later-served defendants are in no worse

position than they would have been if the first-served defendant (or any other defendant) had opposed removal. As Judge

Shedd noted in his district court opinion in Branch, "[t]he

Court sees no reason why [the first-served defendant’s] failure

to remove in a timely manner should be viewed differently

simply because another defendant is in the case." 83 F. Supp.

2d at 636. Moreover, the inequity sought to be avoided in

McKinney was the First-Served Defendant Rule’s requirement

that a later-served defendant join the removal petition within

the first-served defendant’s thirty-day window, and unquestionably the McKinney Intermediate Rule avoids this inequity.

44 BARBOUR v. INTERNATIONAL UNION
Finally, the McKinney Intermediate Rule is less intrusive than

the Last-Served Defendant Rule on the principle that we construe removal statutes strictly, Shamrock Oil, 313 U.S. at 108-

09, as the Last-Served Defendant Rule offers the most expansive reading of § 1446(b). To be sure, the Last-Served Defendant Rule provides the greatest potential for delay in the

removal context. 

Another equitable feature of the McKinney Intermediate

Rule is that it prevents the first-served defendant from benefiting from his inaction. In effect, the McKinney Intermediate

Rule requires the first-served defendant to act, and if he does

not, he forfeits his right to remove the case or to consent to

the removal. Every day litigants are penalized for their failure

to act. And the facts of this case certainly do not help the

defendants’ cause. The defendants were all represented by the

same attorneys and the most sophisticated of the three defendants, the International, was served first and deliberately

chose not to remove the case. Yet, under the majority’s adoption of the Last-Served Defendant Rule, the International

receives a benefit from its inaction, being allowed to join a

removal petition more than thirty days after service on it,

unlike many defendants who fail to timely remove their cases.

If McKinney is concerned with equity, as the majority intimates, the equities in this case simply do not favor the defendants.

Rightly or wrongly, McKinney sought to strike an equitable

balance, allowing a later-served defendant thirty days to act

in the limited circumstance where a timely petition was filed

by an earlier-served defendant. This balance was a consequence of the McKinney court’s desire to avoid reading words

(e.g., first-served or last-served) into the statute. In other

words, to give effect to all the language in § 1446(b), McKinney sought to require every defendant to act within thirty days

of being served, beginning with the first-served defendant. If

a removal petition was not filed within thirty days of service

on the first-served defendant, then the case could not be

BARBOUR v. INTERNATIONAL UNION 45
removed. If a petition was so filed, then every later-served

defendant can join or seek a remand to state court. Obviously,

the Last-Served Defendant Rule does not require any of the

defendants to act in a timely manner, except the last-served.

Having to choose between a reading of the statute that

required all of the defendants to act in a timely manner as

opposed to one, we chose the construction that would apply

to all defendants in the event removal is to be achieved. There

is nothing inequitable about interpreting § 1446(b) in a manner that applies its thirty-day timeframe to all defendants

where removal is to be achieved.

II

In the final analysis, this case is about much more than

whether one agrees or disagrees with the McKinney Intermediate Rule. It is about how one panel of this court should treat

the opinion of a prior panel or view the impact of a nondispositive Supreme Court case on our circuit precedent. I am

concerned that the majority’s opinion will lead to a deterioration of the respect we have given over the years to an opinion

of a prior panel, which panel spoke for the entire court. While

such respect fosters collegiality, more importantly, it maintains uniformity in our decisions. I am also concerned that the

majority’s use of a non-dispositive Supreme Court case to

effectively overrule our established circuit precedent will

open the door to further manipulation of such precedent.

It is my fervent hope that en banc review will be sought

and ultimately granted by the full court, so that the ideals of

respect, collegiality, and uniformity, hallmarks of the Fourth

Circuit, remain intact, regardless of the outcome. Clearly, an

en banc setting is the best, and appropriate, place for the court

to give the McKinney Intermediate Rule thumbs-up or

thumbs-down.

It follows that I would vacate the district court’s decision

holding that the defendants’ petition for removal was timely

46 BARBOUR v. INTERNATIONAL UNION
filed and remand the case to the district court with instructions

to remand the case to state court.

BARBOUR v. INTERNATIONAL UNION 47