2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-12-2011

Nicole Delalla v. Hanover Ins Co

Precedential or Non-Precedential: Precedential

Docket No. 10-3933

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 10-3933

_____________

NICOLE M. DELALLA; 

NMD MARKETING, INC., 

 Appellants

v.

HANOVER INSURANCE; 

JOSEPH OBERLIES; 

CONNOR WEBER & OBERLIES

_____________

No. 11-1532

_____________

In re: 

 NICOLE M. DELALLA; 

 NMD MARKETING, INC.,

 Petitioners

_____________
2

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-10-cv-00858

District Judge: The Honorable Michael M. Baylson 

_____________

Submitted under Third Circuit LAR 34.1(a)

September 14, 2011

Before: SLOVITER, SMITH, and NYGAARD, 

Circuit Judges

(Filed: October 12, 2011)

Michael S. Kimm

333 Sylvan Avenue

Suite 106

Englewood, NJ 07632

Counsel for Appellant

Adam M. Finkelstein

Aetna Life & Casualty Company

Law Department

151 Farmington Avenue

Hartford, CT 06156

John C. Grugan

Ballard Spahr
3

1735 Market Street 

51st Floor

Philadelphia, PA 19103

Christopher N. Tomlin

Ballard Spahr

Main Street

Plaza 1000, Suite 500

Voorhees, NJ 08043

Counsel for Appellee Hanover Insurance

Joseph A. Venuti, Jr.

Swartz Campbell

1300 Route 73

Suite 101, Bloom Court

Mount Laurel, NJ 08054

Counsel for Appellees Joseph Oberlies and 

Connor Weber & Oberlies

_______________ 

 OPINION

________________ 

SMITH, Circuit Judge.

In order to remove a lawsuit filed in state court to a 

federal district court under the federal removal statute, 28 

U.S.C. §§ 1441, 1446, a defendant must file a notice of 
4

removal within thirty days of the date on which the 

plaintiff serves “the defendant.” Courts have split in 

interpreting this thirty day limitation: the Fourth and 

Fifth Circuits have held that the thirty day period ends 

thirty days after the first defendant is served (the “firstserved” rule), and the Sixth, Eighth, Ninth, and Eleventh 

Circuits have held that each defendant has a thirty day 

period to file a notice of removal that ends thirty days

after that defendant is served (the “later-served” rule). 

Nicole M. Delalla and NMD Marketing, Inc. appeal in 

part from the District Court‟s order denying a motion to 

remand on the basis that removal was proper under the 

later-served rule. Because we conclude that the laterserved rule represents the most faithful and equitable 

reading of the removal statute, we will affirm the District 

Court‟s order.

I

In 2004, Delalla and NMD were sued by Product 

Partners, LLC in a trademark dispute over a line of 

nutritional supplements sold under the name “Slim 90.” 

See Product Partners, LLC v. NMD Marketing Inc., No. 

04-CV-1775 (E.D. Pa. filed Apr. 23, 2004). At the time, 

NMD held a liability insurance policy issued by Hanover

Insurance. Hanover retained Joseph Oberlies of Connor 

Weber & Oberlies to represent both Delalla and NMD. 

Oberlies negotiated a settlement under which Delalla and 
5

NMD agreed to discontinue the sales and marketing of 

products under the “Slim 90” name. 

Although Delalla and NMD complied with the 

terms of the settlement, they did not feel that the 

negotiated settlement was truly in their interest. Delalla 

and NMD privately retained counsel and requested that 

Oberlies explain why the settlement was in their interests. 

Unsatisfied with Oberlies‟ response, on March 30, 

2009 Delalla and NMD filed suit against Hanover, 

Oberlies, and Connor Weber & Oberlies in the Superior 

Court of New Jersey, Camden County, alleging legal 

malpractice and other related claims under New Jersey 

law. On April 14, 2009, Delalla and NMD served 

Hanover with the Complaint. Oberlies and his law firm

(collectively, the “Law Firm Defendants”), however, 

were not served until April 23, 2009. 

On May 15, 2009, more than thirty days after 

Hanover was served but less than thirty days after the 

Law Firm Defendants were served, the Law Firm 

Defendants filed a notice of removal. Although Hanover 

had not filed a notice of removal within thirty days of 

being served, it joined in the Law Firm Defendants‟ 

notice of removal. The case was removed to the United 

States District Court for the District of New Jersey, and 

was assigned to Judge Robert B. Kugler.
6

On May 22, 2009, Delalla and NMD filed a 

motion to remand the action to New Jersey state court on 

the basis that the notice of removal was not timely, 

having been filed more than thirty days after Hanover 

was served. On October 16, 2009, Judge Kugler denied 

the motion to remand, finding that the removal was 

timely under the later-served rule. 

On February 24, 2010, Judge Kugler granted the 

Law Firm Defendants‟ motion to transfer the case to the 

United States District Court for the Eastern District of

Pennsylvania. The case was assigned to Judge Michael 

M. Baylson in the Eastern District of Pennsylvania. 

On May 24, 2010, Judge Baylson held oral 

argument on various dispositive motions that had been 

filed while the case was pending in the District of New 

Jersey. On May 26, 2010, Judge Baylson denied the 

motions without prejudice, and ordered Delalla and 

NMD to file within thirty days an Amended Complaint 

that satisfied Federal Rule of Civil Procedure 9(b). 

Delalla and NMD did not comply with Judge Baylson‟s 

order; instead, on July 2, 2010, they moved for Judge 

Baylson to recuse himself from the case. 

On August 17, 2010, Judge Baylson denied the 

motion for recusal, and ordered that Delalla and NMD 

show cause why their Complaint should not be dismissed 

for failure to comply with Rule 9(b). Delalla and NMD 
7

responded, but on September 23, 2010, Judge Baylson 

dismissed the case with prejudice. On September 28, 

2010, Delalla and NMD filed a timely notice of appeal 

from Judge Baylson‟s September 23, 2010 Order “and 

from all previous orders in the case.” On February 28, 

2011, along with their brief, Delalla and NMD filed a 

separate petition for mandamus relating to Judge 

Kugler‟s February 24, 2010 Order transferring the case.

II

The District Courts had removal jurisdiction over 

this action based on diversity of citizenship under 28 

U.S.C. §§ 1332, 1441(a).

1

 Delalla and NMD appeal in 

part from Judge Kugler‟s October 16, 2009 Order 

denying their motion to remand.2 Delalla and NMD urge 

 

1 Although Delalla and NMD take issue with whether 

removal was timely, the timeliness of a notice of removal 

does not affect whether removal jurisdiction exists under 28 

U.S.C. § 1441. See Farina v. Nokia Inc., 625 F.3d 97, 114 

(3d Cir. 2010) (“[T]he failure to file a removal petition within 

the 30 day statutory time limit [does not] affect this Court‟s 

jurisdiction.” (quoting McGlinchey v. Hartford Accident & 

Indem. Co., 866 F.2d 651, 653 (3d Cir. 1989))).

2 Delalla and NMD also appeal: (1) Judge Kugler‟s February 

24, 2010 Order transferring the case; (2) Judge Baylson‟s 

August 17, 2010 Order denying Delalla and NMD‟s motion 

for recusal; and (3) Judge Baylson‟s September 23, 2010 

Order dismissing the case. 
8

 

An order transferring venue is not appealable until 

final judgment is entered, unless either the district court 

certifies an appeal under 28 U.S.C. § 1292(b), or the party 

seeking to challenge the order files a petition for mandamus. 

See Nascone v. Spudnuts, Inc., 735 F.2d 763, 765-66 (3d Cir. 

1984). Final judgment was entered on September 23, 2010, 

when Judge Baylson dismissed Delalla and NMD‟s 

complaint. Curiously, rather than immediately appealing 

from that final judgment, Delalla and NMD have filed a 

petition for mandamus along with this appeal. See In re 

Nicole M. Delalla, No. 11-1532 (3d Cir. filed Mar. 3, 2011). 

We have jurisdiction over this petition pursuant to the All 

Writs Act. 28 U.S.C. § 1651(a). 

Mandamus petitions are subject to a stringent standard 

of review—in order to grant mandamus relief, “an appellate 

court must find a clear legal error calling for relief that can be 

obtained through no other means.” Gold v. Johns-Manville 

Sales Corp., 723 F.2d 1068, 1074 (3d Cir. 1983) (emphasis 

added). When Delalla and NMD filed their notice of appeal, 

final judgment had already been entered. They could and 

should have appealed the transfer order as part of their appeal. 

See Nascone, 735 F.2d at 766 (“[I]f the plaintiff ultimately 

could appeal from an adverse final judgment in the case, we 

believe the plaintiff could then raise the failure of the district 

court to re-transfer as grounds for reversal.”). Because 

Delalla and NMD could have obtained relief through 

alternative means, mandamus relief is not warranted. Id.

Even if final judgment had not been entered, nothing in the 

record suggests that Judge Kugler erred in transferring the 

case and Delalla and NMD‟s petition would fail on the merits.
9

us to reverse Judge Kugler‟s order denying their motion 

to remand, arguing that the Law Firm Defendants‟ notice 

of removal was untimely under 28 U.S.C. § 1446(b). We 

have final order jurisdiction under 28 U.S.C. § 1291. 

Because this appeal requires us to interpret § 1446(b), we 

exercise plenary review over the District Court‟s order. 

See Lieberman v. Cambridge Partners, LLC, 432 F.3d 

482, 486 (3d Cir. 2005) (exercising plenary review over 

questions of statutory interpretation).

To resolve this appeal, we must weigh in on a 

question that has become the subject of a deep circuit 

split: “Does the first-served defendant‟s thirty-day clock 

run for all subsequently served defendants (the firstserved rule), or does each defendant get his own thirty 

days to remove after being served (the later-served 

 

We similarly conclude that Judge Baylson did not 

abuse his discretion by denying the motion to recuse. 

Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir. 1987). 

Nothing in the record, when considered objectively, 

“display[s] a deep-seated favoritism or antagonism that would 

make fair judgment impossible.” In re Westinghouse Secs. 

Litig., 90 F.3d 696, 720 (3d Cir. 1996) (quoting United States 

v. Bertoli, 40 F.3d 1384, 1412 (3d Cir. 1994)). 

Finally, we agree that Delalla and NMD‟s Complaint 

fails to satisfy Rule 9(b), for substantially the same reasons 

set forth in Judge Baylson‟s August 17, 2010 Memorandum. 

Mem., Aug. 17, 2010, ECF No. 19.
10

rule)?” Destfino v. Reiswig, 630 F.3d 952, 955 (9th Cir. 

2011). We have yet to address this issue in a 

precedential opinion. For the reasons that follow, we join 

the majority of circuits and adopt the later-served rule.

A

“Federal Courts are courts of limited jurisdiction.” 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 

375, 377 (1994). “Within constitutional bounds, 

Congress decides what cases the federal courts have 

jurisdiction to consider. Because Congress decides 

whether federal courts can hear cases at all, it can also 

determine when, and under what conditions, federal 

courts can hear them.” Bowles v. Russell, 551 U.S. 205, 

212-13 (2007). 

By statute, “any civil action brought in a State 

court of which the district courts of the United States 

have original jurisdiction, may be removed by the 

defendant or the defendants, to the district court of the 

United States for the district and division embracing the 

place where such action is pending.” 28 U.S.C. § 

1441(a). The procedure for removal is set out in 28 

U.S.C. § 1446. Section 1446(a) provides that any 

defendant wishing to remove a case must file a notice of 

removal in federal court:
11

A defendant or defendants desiring to 

remove any civil action or criminal 

prosecution from a State court shall file in 

the district court of the United States for the 

district and division within which such 

action is pending a notice of removal . . . 

containing a short and plain statement of the 

grounds for removal, together with a copy of

all process, pleadings, and orders served 

upon such defendant or defendants in such 

action.

28 U.S.C. § 1446(a). Section 1446(b) then sets out the 

rules governing each notice of removal, including the 

thirty day limitation at issue here:

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 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.

28 U.S.C. § 1446(b).
12

In construing the thirty day limitation, the majority 

of courts of appeals have adopted what has been called 

the later-served defendant rule—the rule applied by the 

District Court. Under the later-served rule, each 

defendant individually has thirty days to file a notice of 

removal beginning when that particular defendant is 

served. See Destfino, 630 F.3d at 956 (9th Cir. 2011); 

Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 

1209 (11th Cir. 2008); Marano Enters. of Kan. v. Z-Teca 

Rests., L.P., 254 F.3d 753, 757 (8th Cir. 2001); Brierly v. 

Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 

(6th Cir. 1999). 

On the other side of the split are the Fourth and 

Fifth Circuits, which have adopted variations of what has 

been called the first-served defendant rule. Under the 

first-served rule, in order to successfully remove a state 

court case, any defendant that seeks to file a notice of 

removal must do so within thirty days of the date of 

service for the first-served defendant.3 See Barbour v. 

 

3

The Fourth Circuit distinguishes its rule from the Fifth 

Circuit‟s rule, calling its approach the “McKinney

Intermediate Rule.” Barbour, 640 F.3d at 607. Both Circuits, 

however, agree that no defendant may file a notice of removal 

more than thirty days after the first defendant is served. The 

distinction between the two rules concerns whether the same 

thirty day window applies to later-served defendants who 
13

Int’l Union, 640 F.3d 599, 610 (4th Cir. 2011); Getty Oil 

Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262-63 (5th 

Cir. 1988). 

We agree with the Sixth, Eighth, Ninth, and 

Eleventh Circuits that the later-served rule represents the 

best reading of § 1446(b) “for reasons grounded in 

statutory construction, equity and common sense.” 

Destfino, 630 F.3d at 956.

B

“When interpreting a statute . . . we must turn first 

to the language of the statute itself. When the words of a 

statute are unambiguous, then, this first canon is also the 

last: judicial inquiry is complete.” SimmsParris v. 

Countrywide Fin. Corp., -- F.3d --, No. 09-4542, 2011 

WL 3196079, at *3 (3d Cir. July 28, 2011) (internal 

quotation marks omitted) (quoting Conn. Nat’l Bank v. 

Germain, 503 U.S. 249, 254 (1992)). 

Section 1446(a) provides that “[a] defendant or 

defendants” may initiate the removal process by filing a 

notice of removal. By referring to “defendants” in the 

plural, this subsection explicitly anticipates the 

possibility that multiple defendants will file notices of 

removal. Section 1446(b) then sets out the rules 

 

wish to join in another defendant‟s timely notice of 

removal—a distinction not relevant to this appeal. 
14

governing each notice of removal that may eventually be 

filed, providing that “[t]he notice of removal of a civil 

action or proceeding shall be filed within thirty days after 

the receipt by the defendant . . . .” 28 U.S.C. § 1446(b).

Section 1446(a) sets out the general rule that 

defendants in a civil action must file a notice of removal 

in order to initiate the removal process. Section 1446(b) 

then sets out a specific rule governing the timeliness of 

each notice of removal that is eventually filed. See 

Destfino, 630 F.3d at 955; Bailey, 536 F.3d at 1207; 

Brierly, 184 F.3d at 533; see also Barbour, 640 F.3d at 

622 (Agee, J., concurring in judgment). This reading 

follows from the text of the two provisions, which must 

be read together in order to give effect to congressional 

intent regarding the procedure for removal. Kokoszka v. 

Belford, 417 U.S. 642, 650 (1974) (statutes should be 

read as a whole in order to properly construe 

congressional intent). 

Subsection (a) uses the phrase “defendant or 

defendants” to indicate that one or more defendants may 

attempt to remove a case by filing a notice of removal. 

Subsection (b) then uses the singular to refer to “[t]he 

notice of removal” and “the defendant [who has been 

served].” Given that § 1446(a) explicitly affirms the 

possibility of multiple notices of removal, the only 

reasonable reading of § 1446(b) is that the subsection 

applies individually to each notice of removal that might 
15

potentially be filed by each removing “defendant.” To 

hold otherwise would create tension between subsections 

(a) and (b). The plain text of § 1446(b) thus points 

toward the later-served rule.

Textual reasons alone support the adoption of the 

later-served rule. It is worth noting, nonetheless, that the 

rule is also more equitable than the first-served rule. 

Under the later-served rule, each defendant has an equal 

amount of time in which to decide whether or not to file a 

notice of removal. As a result, a defendant‟s right to 

removal is protected without regard to when that 

defendant was served. Under the first-served rule, on the 

other hand, the time a defendant has to file a notice of 

removal is a function of when that defendant is served. 

Consequently, a later-served defendant may be denied his 

or her right to file a notice of removal and to convince his 

or her more reluctant co-defendants to join in removal 

merely because the removing defendant was not served 

earlier. In fact, under the first-served rule, the possibility 

exists that a later-served defendant would have had to file 

a notice of removal before being served with a complaint. 

Such a result contravenes Congress‟s “intent to eliminate 

the situation wherein a defendant who has not received 

the complaint must decide whether to remove „before he 

knows what the suit is about.‟” Sikirica v. Nationwide 

Ins. Co., 416 F.3d 214, 222 (3d Cir. 2005) (quoting 
16

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 

U.S. 344, 352 (1999)).

The first-served rule not only unfairly prejudices 

later-served defendants, but it creates a perverse 

incentive system that encourages further inequity. Under 

the first-served rule, a plaintiff who wishes to remain in 

state court benefits by serving a defendant who is 

indifferent to removal, and then waiting to serve other 

defendants who are more likely to wish to remove. The 

rule thus incentivizes plaintiffs to take advantage of the 

inequities inherent under the first-served rule. By 

protecting each defendant‟s right to removal without 

regard to whether other defendants were served earlier, 

the later-served rule thus removes the incentive for 

“unfair manipulation by delaying service on defendants 

most likely to remove.” Destfino, 630 F.3d at 955. 

C

Courts that have adopted the first-served rule offer

three reasons for their decisions: (1) the first-served rule 

derives from a better reading of the language of § 

1446(b); (2) the later-served rule is inequitable because it

allows earlier-served defendants two opportunities to 

remove; and (3) the first-served rule is more appropriate 
17

given that removal statutes are to be strictly construed.4 

None of these arguments upends the textual basis for the 

later-served rule, nor its equitable justifications.

Courts of appeals adhering to the first-served rule 

proffer a different reading of § 1446(b), noting that the 

thirty day window only applies to the first-served 

defendant because the statute uses the singular when 

referring to “the defendant.” See, e.g., Barbour, 640 F.3d 

at 611. The use of the singular, these courts argue, 

suggests that Congress intended that the thirty day period 

run only once, rather than for each removing defendant.

When considering the plain meaning of a statute, 

however, a court should “not look merely to a particular 

clause in which general words may be used, but will take 

in connection with it the whole statute . . . and give to it 

 

4 One court has also suggested that the later-served rule is 

unfair to plaintiffs because it exposes them to the possibility 

that at some point later in the litigation, they may have to 

move to federal court. Brown v. Demco, Inc., 792 F.2d 478, 

482 (5th Cir. 1986). As has been pointed out, any such 

unfairness would be the product of a plaintiff‟s decision to 

delay service upon a defendant after serving the first-served 

defendant. Destfino, 630 F.3d at 956. Even if the delay could 

not be fairly attributed to the plaintiff, “the marginal 

efficiency benefits of selecting a forum early don‟t outweigh 

the manifest unfairness of depriving later-served defendants 

of a federal forum.” Id.
18

such a construction as will carry into execution the will 

of the Legislature.” Kokoszka, 417 U.S. at 650 (internal 

quotation marks omitted) (quoting Brown v. Duchesne, 

60 U.S. 183, 194 (1856)). It is certainly true that 

subsection (b) uses the singular in referring to “the 

defendant.” Subsection (b) also uses the singular in the 

same clause when discussing “the notice of removal.” If 

the use of the singular with respect to “the defendant” 

required that thirty day period only applied to one 

singular defendant, the use of the singular with respect to 

“the notice of removal” should similarly require that only 

one notice of removal be permissible. As already 

discussed, however, such a reading would conflict with § 

1446(a), which explicitly anticipates the possibility of 

multiple notices of removal. 

In fact, as other courts have recognized, the Fourth 

and Fifth Circuits‟ textual reading contravenes the actual 

language of § 1446(b) by substituting “the defendant” 

with “the initial defendant.” Destfino, 630 F.3d at 955; 

Barbour, 640 F.3d at 622-23 (Agee, J., concurring in 

judgment). Moreover, if Congress had intended to create 

a first-served rule, it could easily have stated as much in 

§ 1446(b). It did not. By reading the text to support the 

first-served rule, the Fourth and Fifth Circuits have failed 

to read § 1446(b) alongside § 1446(a) in order to 

properly construe the congressional intent behind the 

statute as a whole. The later-served rule thus arises out 
19

of the most sensible reading of the plain language of § 

1446.

In addition to this textual argument, first-served 

circuits have also argued that the later-served rule is 

inappropriate because it allows earlier-served defendants 

two opportunities to exercise their right to removal. 

Once thirty days have passed after the first defendant is 

served, these circuits argue, the first-served defendant has 

chosen not to exercise its right to removal. Removal 

requires unanimity—all defendants must join in a notice 

of removal in order for removal to be permissible. See

Fletcher v. Hamlet, 116 U.S. 408, 410 (1886) (“There 

can be no removal by the defendants unless they all join 

. . . .”). Because the first-served defendant, at the close 

of the initial thirty day period, has chosen to not exercise 

his or her right to removal, there can no longer be 

unanimity. The last-served rule, first-served Circuits 

argue, accommodates the rule of unanimity by allowing 

earlier-served defendants to “change their minds” and 

choose to join in a notice of removal even after initially 

deciding against removal. The later-served rule thus 

supposedly allows earlier-served defendants two bites at 

the removal apple.

As other courts have pointed out, this argument 

equates filing a notice of removal with choosing not to 

join in a co-defendant‟s notice of removal. As the Ninth 
20

Circuit has recognized, however, the two actions are 

quite different:

[T]he fact that a defendant hasn‟t taken the 

initiative to seek removal doesn‟t 

necessarily mean he will object when 

another defendant does. Failure to file a 

petition may be based on a lack of resources, 

trusting a lawyer‟s advice or inertia. There 

is no reason to lock an earlier-served 

defendant out of the federal forum, if he 

later chooses to consent.

Destfino, 630 F.3d at 956; see also Barbour, 640 F.3d at 

624 (Agee, J., concurring in judgment) (“[F]iling a notice 

of removal is not the same as joining in that removal.”

(emphasis in original)). 

We agree with the Ninth Circuit. Section 1446(b)

plainly speaks to the requirements for filing a notice of 

removal; it does not speak to joinder in another 

defendant‟s notice of removal. See Barbour, 640 F.3d at 

622-24 (Agee, J., concurring in judgment) (“Section 

1446(b) does not speak to multiple defendants, nor does 

it reference joinder. Consequently, . . . [r]emoval is 

controlled by § 1446(b)‟s thirty-day requirement, but 

joinder is not.”). That a defendant has chosen not to file 

a notice does not mean that the defendant has chosen to 

not join in another notice of removal. An earlier-served
21

defendant should not be precluded from joining in 

another defendant‟s notice simply because that defendant 

elected not to file a notice of removal. Neither the rule of 

unanimity nor § 1446(b) requires a different result.

Finally, courts that have adopted the first-served 

rule consistently cite to the general rule that statutory 

procedures for removal are to be strictly construed. See, 

e.g., Barbour, 640 F.3d at 605 (citing Shamrock Oil & 

Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941)). 

Because the first-served rule represents the strictest 

reading of § 1446(b), these courts argue, it is the more 

appropriate approach. While it is certainly true that 

removal statutes generally should be construed strictly, 

the Supreme Court has declined to adopt the strictest 

construction of a removal statute where the language of 

the statute and congressional intent point toward a more 

lenient interpretation. Murphy Bros., Inc. v. Michetti 

Pipe Stringing, Inc., 526 U.S. 344, 347 (1999). In 

Murphy Bros., when presented with three alternative 

interpretations of the thirty-day window in § 1446(b), the 

Supreme Court chose a lenient reading of the statute 

based on its assessment of congressional intent. See

Destfino, 630 F.3d at 956. In the wake of Murphy Bros., 

the general rule that removal statutes are to be construed 

strictly is not sufficient to displace the plain meaning of § 

1446(b), not to mention the fairness concerns that weigh 

in favor of the later-served rule. See Destfino, 630 F.3d 
22

at 956; Bailey, 536 F.3d at 1207; cf. Sikirica, 416 F.3d at 

222 (noting that this court‟s § 1446(b) jurisprudence “has 

been placed in doubt by Murphy Bros.”).

IV

We conclude that the later-served rule represents a 

better reading of the language § 1446(b) and results in 

more equitable treatment to later-served defendants. We 

join the Sixth, Eighth, Ninth, and Eleventh Circuits in 

adopting the later-served rule. We will therefore affirm the 

District Court‟s order.