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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

)

THRENZETTA LETT BETTS, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 05-0600-CG-C

)

LARSEN INTERMODAL SERVICES, )

INC., et al., )

)

Defendants. )

ORDER

This matter is before the court on plaintiff’s motion to remand and brief in support 

(Docs. 12 & 25), the responses thereto of defendants, Flexi-Van, Inc. and Kansas City Southern

Railway Company, (Docs. 29 & 30), plaintiff’s replies (Docs. 31 & 40) and the supplemental

brief of Kansas City Southern Railway Company (Doc. 39). Plaintiff asserts that remand is

appropriate because (1) Alfa Mutual Insurance Company is an Alabama corporation and is a real

and substantial party to the litigation, and (2) removal was untimely. The court finds that

removal was untimely. Therefore, plaintiff’s motion is due to be granted on that basis and the

court declines to address plaintiff’s alternative argument. 

FACTS

This case was originally filed on August 24, 2005, in the Circuit Court of Wilcox County,

Alabama. Defendants, Larsen Intermodal Services, Inc. (“Larsen”), Daniel D. Clay, Flexi-Van

Leasing Inc. (“Flexi-Van”), Alfa Mutual Insurance Company (“Alfa”) and Ohio Casualty

Insurance Company (Ohio Casualty”), were all served with the complaint on August 26, 2005. 

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Plaintiff amended the complaint on September 15, 2005, to add Kansas City Southern Railway

Company (“KCS”). KCS was served with the complaint on September 16, 2005. On October

14, 2005, KCS filed a notice of removal with this court. Larsen, Clay, Flexi-Van, and Ohio

Casualty consented to KCS’s removal. Defendant Alfa did not consent. 

LEGAL ANALYSIS

Federal courts are courts of limited jurisdiction; therefore, remand statutes are construed

narrowly and jurisdictional uncertainties are resolved in favor of remand. Burns v. Windsor Ins.

Co., 31 F.3d 1092, 1095 (11th Cir. 1994). While 28 U.S.C.A. § 1441 sets forth the jurisdictional

requirements for removal, § 1446 provides the procedure for removal of an action from state

court to federal court. Section 1446(b) mandates that where the case is removable upon the

initial pleading:

[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, 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.

Generally, “all defendants must join in a removal petition in order to effect removal.” Newman

v. Spectrum Stores, Inc., 109 F.Supp.2d 1342, 1345 (M.D. Ala. 2000) (quoting Northern Illinois

Gas Co. v. Airco Indus. Gases, Div. of Airco, Inc., 676 F.2d 270, 272 (7th Cir. 1982); see also

Russell Corp. v. American Home Assur. Co., 264 F.3d 1040, 1049 (11th Cir. 2001) (“[T]he law is

well settled that in cases involving multiple defendants, all defendants must consent to the

removal of a case to federal court.”). “Like all rules governing removal, this unanimity

requirement must be strictly interpreted and enforced because of the significant federalism

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concerns arising in the context of federal removal jurisdiction.” Russell, 264 F.3d at 1049

(citations omitted). Without the timely consent of all defendants, removal is defective and the

case may be appropriately remanded pursuant to 28 U.S.C. § 1447(c).

Plaintiff asserts that removal was untimely because it was filed more than thirty days

after the first defendant was served. Defendants assert that KCS, as a later added defendant, had

30 days from the date it was served to effect removal. The Eleventh Circuit has not definitively

addressed whether service on the first-served or last-served defendant begins the time limit for

removal in cases where multiple defendants were served on different days. There is a split of

authority amongst the federal courts as to which rule to apply. This court has previously applied

the first-served defendant rule in this district. See e.g. CV05-0202-CB-M, Doc 25; CV03-

00311-WS-L, Doc. 26; CV03-0054-CG-M, Doc. 24. Defendants argue that this case is different

because the later-served defendant resulted from a new pleading, the amended complaint. 

Defendants assert that because it was an entirely new pleading that added KCS as a defendant,

KCS should be allowed 30 days from the date it was served to timely remove. Defendants

maintain that the court should follow Fitzgerald v. Bestway, 284 F.Supp.2d 1311 (N.D. Ala.

2003), in which the Northern District of Alabama followed the last-served defendant rule when

presented with similar circumstances. In Fitzgerald, the removing defendant had been served

after the time period for removal by the original defendants had expired. More recently, the

Middle District of Alabama, noting the defendant’s argument that the court should follow

Fitzgerald, ruled that the first-served rule applies even where a defendant was added more than

thirty days after service. Adams v. Charter Communications VII, LLC, 356 F.Supp.2d 1268

(M.D. Ala. 2005). As that court explained:

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. . . Whatever this Court might think of the relative merits of the "first-served

defendant rule" and the "last-served defendant rule," in the absence of direction

from either the United States Supreme Court or the Eleventh Circuit Court of

Appeals, this Court will not deviate from the path selected by the other judges of

this district. Accordingly, the Court finds that the "first-served defendant rule" is

applicable to this case.

The application of the "first-served defendant rule" to this case is rather

straight-forward and requires remand. Charter is the defendant first served with

Summons and Complaint in this case. That service occurred more than thirty-days

prior to Crown's removal of this action. Accordingly, the removal is untimely. 

The fact that Crown was not a named or identified party defendant at the time the

thirty-day period expired does not alter the application of the "first-served

defendant rule." See, generally, Brown[v. Demco, Inc.], 792 F.2d 478 [(5th Cir.

1986)]. Indeed, the Brown case which helped established the "first-served

defendant rule" and which has been followed by this district involves a very

similar fact pattern to the one which exists in this case. Accordingly, consistent

with the reasons articulated in Brown, the Court finds that this case is due to be

remanded.

Adams, 356 F.Supp.2d at 1273. In this case, the equitable reasons for allowing KCS additional

time to remove are not as strong as those present in Fitzgerald and Adams. KCS was served

prior to the expiration of the 30 day time limit for the original defendants to remove. The

original defendants, Larsen, Clay, Flexi-Van, Alfa, and Ohio Casualty, were all served with the

complaint on August 26, 2005, and had until September 25, 2005, to timely remove the case. 

KCS was served with the complaint on September 16, 2005, and, therefore, had nine days to

effect removal under the first-served rule. 

Defendants also argue that the U.S. Supreme Court decision in Murphy Bros. v. Michetti

Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999), suggests the

adoption of the last-served defendant rule. Murphy Brothers held that a named defendant's

30-day period to remove an action from state court "is triggered by simultaneous service of the

summons and complaint, or receipt of the complaint, 'through service or otherwise,' after and

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

formal service." Id. at 348, 119 S.Ct. at 1325. Defendants cite cases from other district courts

and circuits which have found that although Murphy Brothers involved only a single defendant,

its holding applies in multiple defendant contexts. See e.g. Piacente v. State Univ. of N.Y. at

Buffalo, 362 F.Supp.2d 383 (W.D.N.Y. 2004); Marano v. Enters. of Kansas v. Z-Teca Rests.,

Inc., 254 F.3d 753 (8th Cir. 2001). However, this district has previously rejected that argument. 

Cartee v. Precise Cable Const., Inc., 2005 WL 2893951, *5 (S.D. Ala. Nov. 1, 2005). Magistrate

Judge Cassady, writing for the court, stated the following:

While it is true that the Eighth Circuit, in Marano, has predicted that if faced with

the issue 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[,]" 254 F.3d at 756

(citation omitted); see also Barnhart[v. Federated Dept. Stores], supra, 2005 WL

549712, at *6 [(S.D.N.Y)] ("The last-served defendant rule is more consistent

with the Murphy Brothers decision than the first-served defendant rule.");

Piacente v. State University of New York at Buffalo, 362 F.Supp.2d 383, 388

(W.D.N.Y.2004) ( "[T]his Court finds that, logically extended, Murphy Bros.

favors adoption of the RD [removing defendant] rule ."); In re Tamoxifen Citrate

Antitrust Litigation, 222 F.Supp.2d 326, 335 (E.D.N.Y.2002) ("The Court

concludes that application of the 'first-served rule' would not be fair to the

defendants, nor does it seem appropriate in light of Murphy Brothers and the

language of Section 1446(b)."), numerous district courts across the country have

rejected the notion that Murphy Brothers signals that the Supreme Court will

follow the later-served defendant rule if it ever decides to weigh-in on the

timeliness issue in a case involving multiple defendants served at different times,

Cellport Systems, Inc. v. Peiker Acustic GMBH & Co. KG, 335 F.Supp.2d 1131,

1134 (D.Col.2004) ("The [Murphy Brothers ] case involved a single defendant

and the Court did not consider the issues presented by the separate question of the

statutory period for removal in cases involving multiple defendants. I find nothing

in the Murphy decision, therefore, that undermines the first-served rule or its

rationale. To the extent other courts have found otherwise, see, e.g., Morano, 254

F.3d at 756-57, I respectfully disagree with their conclusions."); Smola [v.

Turnbull Ins. Co.], supra, 317 F.Supp.2d at 1232 & 1233 [(D.Col. 2004)] ("This

court does not believe that Murphy portends evisceration of the 'first-filed rule.' ...

Since Murphy involved only one defendant, the Court simply had no occasion to

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consider the slew of questions raised when one or more multiple defendants

attempts to remove a case. This court sees no language in Murphy which would

portend the demise of the first-filed rule. Nor does this court understand the logic

of cases suggesting that Murphy supports the last-filed rule."); Smith v. Health

Center of Lake City, Inc., 252 F.Supp.2d 1336, 1346 n. 2 (M.D.Fla.2003) ("The

Court also does not find that the Supreme Court's holding in Murphy Bros.

indicates that the Supreme Court would adopt the approach taken by the Eighth

Circuit in Marano. Murphy Bros. was based on the 'bedrock 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.' ... Such bedrock principle is not implicated in this case."); Baych [v.

Herrick Douglas, Inc.], supra, 227 F.Supp.2d [620] at 622 [(E.D.Tex.

2002)]("[T]his court declines to extend [Murphy Brothers' ] reasoning to overrule

the well established Fifth Circuit precedent of Getty Oil [Corporation v. Insurance

Company of North America, 841 F.2d 1254 (5th Cir. 1988)]." ); Auchinleck [v.

Town of Lagrange], supra, 167 F.Supp.2d [1066] at 1069 [(E.D.Wis. 2001)]

("Defendants also advance the argument, echoed by the Eighth Circuit in Marano

Enterprises, that the Supreme Court's recent decision in Murphy Bros. v. Michetti

Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999)

suggests that the first-served rule is no longer viable.... This argument takes

Murphy Bros. too far and fails to realize the logical effect of the first-served

defendant's failure to timely remove. Certainly, formal service of process signals

the beginning of the litigation process for the defendant. However, the failure of

the first-served defendant to timely remove simply means that removal is

impossible for future defendants.").

This Court finds, consistent with many district courts before it, that

Murphy Brothers does not sound the death knell for the first-served defendant

rule in cases, like the present, involving multiple defendants who are served at

different times. In Murphy Brothers there was only one defendant and, therefore,

the Supreme Court had no occasion to decide whether it favored the first-served

defendant rule or the minority later-served defendant rule. Moreover, a scenario

in which the Supreme Court opts in favor of the first-served rule is as believable

as the scenario predicted by Marano, supra, particularly since the former is not

only "more consistent with the long line of cases strictly construing removal and

similar jurisdictional statutes against removal[,]" but also because it "settles at an

early stage the question of whether the litigation will proceed in a federal or state

forum." Smola, supra at 1233. Accordingly, the undersigned adopts as the

appropriate rule in this Court that rule presaged by three district judges in the

Southern District of Alabama (Doc. 19, Exhibits A-C): the first-served defendant

rule.

Cartee v. Precise Cable Const., Inc., 2005 WL 2893951, *4-5 (S.D. Ala. Nov. 1, 2005). The

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undersigned finds the reasoning of the prior decisions in this district to be persuasive.

CONCLUSION

Applying the first-served defendant rule to the instant action, the court finds that

defendants’ notice of removal was not timely filed. Therefore, plaintiff’s motion to remand 

(Doc. 12 ) is GRANTED and this case is hereby REMANDED to the Circuit Court of Wilcox

County, Alabama. 

DONE and ORDERED this 21st day of June, 2006.

/s/ Callie V. S. Granade 

CHIEF UNITED STATES DISTRICT JUDGE

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