When removal is untimely under § 1446(b)
A notice of removal is untimely if it is filed more than 30 days after the defendant is formally served. The statute says the notice "shall be filed within 30 days after the receipt by the defendant," through service or otherwise, of the initial pleading, or within 30 days after service of summons if that period is shorter. 28 U.S.C. § 1446(b)(1)1
- The clock starts at formal service, not at a courtesy copy. Removal time is triggered by service, "but not by mere receipt of the complaint unattended by any formal service." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)2
- Each defendant gets its own 30 days. "Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading". An earlier-served defendant may consent to a later-served defendant's timely removal. 28 U.S.C. § 1446(b)(2)(B)–(C)1
- Unanimity applies in § 1441(a) removals. Every properly joined and served defendant must join in or consent to the removal. 28 U.S.C. § 1446(b)(2)(A)1
- Later-revealed removability. If the case stated by the initial pleading is not removable, a notice "may be filed within thirty days after receipt by the defendant, through service or otherwise," of an amended pleading, motion, order, or other paper showing the case has become removable. Amount-in-controversy information in the state record or in discovery responses counts as an "other paper." 28 U.S.C. § 1446(b)(3), (c)(3)(A)1
- The one-year bar applies to diversity removals under (b)(3). No removal on § 1332 grounds "more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith". Deliberately failing to disclose the actual amount in controversy to prevent removal is deemed bad faith. 28 U.S.C. § 1446(c)(1), (c)(3)(B)1
- Counting the days. Rule 6(a) governs periods "in any statute that does not specify a method of computing time." If the last day falls on a Saturday, Sunday, or legal holiday, the period runs to the next day that is not one. Fed. R. Civ. P. 6(a)(1)(C)3
Practice notes
- The plaintiff can waive untimeliness. A motion to remand "on the basis of any defect other than lack of subject matter jurisdiction" "must be made within 30 days after the filing of the notice of removal". Courts generally treat a late removal as that kind of non-jurisdictional defect. 28 U.S.C. § 1447(c)4
- Fee exposure and finality. A remand order "may require payment of just costs and any actual expenses, including attorney fees". Remand orders are generally "not reviewable on appeal or otherwise," with statutory exceptions. 28 U.S.C. § 1447(c)–(d)4