In Abdullah v American Products Co., 661 F. Supp. 2d 84 (D. Mass. 2009), plaintiff sued the manufacturer and seller of a sports cycle in Massachusetts Superior Court for negligence and violation of Mass. Gen. L. c. 93A (the Massachusetts unfair and deceptive trade practices statute) after he was injured while riding the sports cycle. The seller removed the action to the United States District Court for the District of Massachusetts and plaintiff moved to remand. Only then did the manufacturer consent to the action’s removal.

The court observed that, pursuant to the “rule of unanimity,” all defendants must consent to removal of most multi-defendant cases. The court additionally observed that 28 U.S.C. § 1446 requires a defendant to remove an action within thirty days of being served with the complaint. The court outlined two standards recognized in the case law for measuring the thirty-day removal window. Under the “first-served defendant” approach, all defendants have thirty days to either remove or consent to removal from the time the first defendant is served with the complaint, regardless of whether the other defendants have been served by the time that window closes. Under the “last-served defendant” approach, the action may be removed by consent of all defendants within thirty days after the last defendant is served.

The Court declined to decide which approach to adopt, as the manufacturer’s consent was untimely under either approach. The court rejected the manufacturer’s argument that it had not retained counsel at the time of the seller removed, holding that, although the “last-served defendant” approach “excuses earlier-served defendants from having to consent to removal within 30 days of being served, it does not afford them a license to consent whenever they please.”