A wise man (who we'd never heard of until searching for witty quotes with which to open this article) once said, “Procrastination is the bad habit of putting off until the day after tomorrow what should have been done the day before yesterday.” The UAW will undoubtedly attest to this notion following the decision earlier this year from the Fourth Circuit in Barbour, et al. v. UAW, et al.pdf.

The plaintiffs in Barbour claimed that the UAW International and two of its locals lured them into a January 31, 2007 retirement from a Chrysler plant in Maryland by assuring them that any retirement incentive plan announced later that year would apply retroactively. Anyone care to guess what happened next? If you said, "A retirement incentive plan was announced later that year but wasn't retroactive," congratulations, you've been paying attention! In fact, it was announced two weeks later, in mid-February. (Kind of an incredible timetable since, if the UAW is to be believed, there was no incentive plan in the works as of the end of January....)

The plaintiffs sued both the International and the two locals on a wonderful assortment of state law claims. The International was served on March 20, 2008, and the first local was served nine days later on March 29th. These two defendants filed a notice of removal in federal court on April 28, 2008, the thirtieth day following service on the first local. (The second local--apparently the most adept of the three at dodging service--was not served until after the case was removed.) So far so good, right?

Wrong! The Fourth Circuit rejected recent case law from the Sixth, Eighth and Eleventh Circuits, and held that the 30-day time limit for removal does not begin to run when the last defendant is served. Rather, the court held, the first-served defendant has 30 days after service to remove the case. If the case is removed, defendants who are served thereafter have 30 days from their own date of service in which to decide whether to join the removal or move to remand. Here's the catch, however - if the first-served defendant decides not to remove the case, the case stays in state court regardless of whether subsequently served defendants wish for it to be removed. So, if the plaintiff serves the first defendant more than 30 days before serving anyone else, the subsequent defendants may be left wafting up a creek with 'nary a paddle in sight.

But no, you say! How can that be fair to the poor, subsequently served defendants? Well, the Fourth Circuit explained, it's not unfair because that first-served defendant obviously will have identified the potential bases for removal, weighed all the risks and benefits of each, studied the relevant case law and arrived at a carefully reasoned decision that the case should remain in state court. Thus, the court reasoned, even if the subsequently served defendants did have some theoretical right to remove the case to federal court, the first-served defendant would nix the idea based on its aforementioned, carefully thought out decision. The much-beloved rule of unanimity (which, by the way, isn't in the statute) would see to it.

This seems to us like a pretty big assumption. It's not hard to conceive of a situation in which the first defendant would forego removal based on something other than an analysis of the issues, particularly in some of the more arcane realms of employment and labor law where field preemption guards the castle walls and the well-pleaded complaint rule stands lonely on the opposite side of the moat. (What would the world be without overdramatic metaphors?) On the other hand, at least based on the facts described in the Fourth Circuit's opinion (which may not be complete), it's difficult to understand the motive for waiting until the last possible day to remove a case.

The Bottom Line: If removal is a possibility, be cautious and thoughtful in deciding when to file the petition, particularly if other defendants are served first.