Ninth Circuit allows removal before service.

In some cases, a defendant receives a copy of a complaint before being formally served.  When this happens, can the defendant immediately remove the case to federal court under 28 U.S.C. § 1446(b)(1), or does the defendant need to wait until they have been formally served to do so?

According to the Ninth Circuit in Mayes v. American Hallmark Ins. Co., the defendant can remove the case immediately.  This had to be reconciled with the Supreme Court’s decision in Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) that the removal clock does not begin until the defendant has been formally served. According to the Ninth Circuit, Murphy Bros. sets a deadline for removal, not a window.  In other words, the 30-day time limit does not begin to run until formal service, but the defendant can seek removal at any time before that deadline. This brings the Ninth Circuit in-line with the First, Second, Fifth, and Eleventh circuits. 

A plaintiff’s job isn’t done just because a defendant removes, though. Courts have held that removal “does not waive any Rule 12(b) defenses.” Cantor Fitzgerald, L.P., v. Peaslee, 88 F.3d 152, 157 n.4 (2d Cir. 1996); see also Dingus v. City of Portland, 2006 WL 8459002, at *4 (D. Or. Feb. 8, 2006), report and recommendation adopted, 2006 WL 8459009 (D. Or. Mar. 10, 2006) (removal does not waive service of process). This can have dire consequences for a plaintiff. For example, in In re Trasylol Products Liability Litigation, the defendant removed the case before formal service, and then the plaintiff seemingly forgot to formally serve the defendant. 2011 WL 830287, *6 (S.D. Fla. March 8, 2011). This resulted in dismissal of the case. So, plaintiffs should be sure to follow their service obligations even if the case has been removed.