783 F.3d 910
1st Cir.2015Background
- Novak, a Massachusetts plaintiff, appealed a district court order denying remand and granting dismissal based on removal proceedings.
- Select Portfolio Servicing removed the case to federal court invoking diversity jurisdiction, prior to Novak serving any defendants.
- Novak argued removal was improper because removal requires pre-suit service under Murphy Bros. v. Michetti Pipe Stringing, Inc.
- The district court applied 28 U.S.C. § 1446(b)(1), which provides two 30-day removal windows, one after receipt of initial pleading and one after service of summons.
- The issue turned on whether a defendant may remove before formal service and when the removal clock begins.
- The First Circuit affirmed, holding that a defendant may remove before service and that removal can occur any time after filing but before the shorter removal period ends.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal before service is permissible under §1446(b)(1). | Novak maintains pre-service removal is prohibited by Murphy Bros. | Select Portfolio contends removal may occur after filing and before service per §1446(b)(1). | Removal before service is generally permitted. |
Key Cases Cited
- Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (Supreme Court 1999) (removal period begins after receipt or service, not before)
- Tyler v. Cain, 533 U.S. 656 (Supreme Court 2001) (statutory text meanings and context inform interpretation)
- Robinson v. Shell Oil Co., 519 U.S. 337 (Supreme Court 1997) (language context in removal statute)
- Lorillard v. Pons, 434 U.S. 575 (Supreme Court 1978) (legislative intent presumed in reenactment of statutes)
- Delgado v. Shell Oil Co., 231 F.3d 165 (5th Cir. 2000) (premise that pre-service removal is permissible in many circuits)
- La Russo v. St. George's Univ. Sch. of Med., 747 F.3d 90 (2d Cir. 2014) (supports pre-service removal position)