Smola v. TRUMBULL INSURANCE COMPANY, 317 F. Supp. 2d 1232 (D. Colo. 2004)

Robert T. Lego, Atty at Law, Englewood, CO, for Plaintiffs.

Geoffrey Race, Wells, Anderson & Race LLC, Denver, CO, for Defendants.

NOTTINGHAM, District Judge.

This matter is before the court on "Plaintiffs' Motion Pursuant to 28 U.S.C. § 1447(c) for Remand to State Court" filed January 9, 2004. The motion is premised on the undisputed fact the Defendant Trumbull Insurance Company was served with a copy of the Amended Complaint and Summons on November 4, 2003. The other defendants were served later. The notice of removal was filed on December 10, 2003, within thirty days from the date of service on all defendants except Trumbull, as to whom the notice was filed more than thirty days after Trumbull was served. All defendants, including Trumbull, joined in, or consented to the filing of, the notice of removal.

The issue is whether the notice of removal was timely filed. Plaintiff relies on the line of cases standing for what has been called the "first-served rule." This rule interprets the pertinent statute to require that all served defendants, except nominal defendants, join in, or consent to, the removal petition within thirty days of the date on which the first defendant is served. Under the "first-served rule," the notice of removal would be untimely. Defendants reply by invoking the "last-served rule" followed by other courts. The last-served rule is that the statutory thirty-day period begins to run when the last defendant is served. Under this rule, the notice of removal would be timely. Defendants also suggest that the first-served rule has been undercut by the Supreme Court's decision in Murphy Bros. v. Michetti Pipe Stringing Inc., 526 U.S. 344, 119 S. Ct. 1322, 143 L. Ed. 2d 448 (1999).

This court does not believe that Murphy portends evisceration of the "first-filed rule." Murphy involved a single defendant. During pre-litigation settlement negotiations, plaintiff filed the complaint and *1233 sent a copy to defendant by facsimile. Plaintiff later accomplished formal personal service on defendant. The question in Murphy was whether the thirty-day time period began to run from the date defendant received the facsimile transmission or the date when defendant was formally served. The Court simply held that time began to run from the date of formal service, reasoning that it is formal service, not facsimile transmission, which signals the commencement of litigation. Since Murphy involved only one defendant, the Court simply had no occasion to 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. See, e.g. Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P. 254 F.3d 753, 756-757 (8th Cir. 2001).

The court has examined the cases supporting the first-filed rule, as well as those supporting the last-filed rule. The former are more compelling. Two reasons stand out. First, the first-filed rule is more consistent with the long line of cases strictly construing removal and similar jurisdictional statutes against removal. See, e.g. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S. Ct. 868, 85 L. Ed. 1214 (1941). Second, the first-filed rule settles at an early stage the question of whether the litigation will proceed in a federal or state forum. In contrast, the last-filed rule would allow a defendant who has evaded service or as to whom service has been difficult and delayed to remove within that defendant's thirty-day period, provided only that all other defendants (including those who may have been served months earlier) consent to removal.

In accordance with the foregoing findings and conclusions, it is ORDERED as follows:

1. The motion to remand is GRANTED.

2. This case is hereby REMANDED to the Arapahoe County (Colorado) District Court.