Recocking the Removal Trigger

Abstract

Most plaintiffs prefer to litigate in state court and most defendants prefer to litigate in federal court. Their reasons are personal, practical, and tactical, and, based on recent scholarly research, also empirical. These preferences are brought into sharp conflict when a plaintiff files a civil action in state court that could have instead been filed in federal court. The defendant against whom the action is brought may remove the case and have it tried in federal court. Removal jurisdiction has spawned more litigation and contains more pitfalls for a litigant than almost any other area of federal practice. The timing provision of the removal statute has been the subject of much of this litigation and the source of one of the statute's principal pitfalls. This Article analyzes the circumstances in which the removal timing provision has been subject to conflicting interpretations and suggests amendments to § 1446(b) to resolve the conflict. Part II describes the courtesy copy removal trap and its resolution by Murphy Brothers, Inc. v. Michetti Pipe Stinging, Inc. Part III focuses on the three other removal timing problems and analyzes whether dicta in Murphy Brothers provides sufficient guidance to the lower federal courts to resolve these problems. Part III concludes that legislative modification of § 1446 is necessary. The centerpiece of the Article, Part IV, proposes an amendment to § 1446, codifying the holding and dicta in Murphy Brothers, and expressly addressing the other timing problems. Although adopting this proposal is not likely to end all § 1446(b) litigation, its adoption would substantially improve current practice.

Keywords: Murphy Brothers, Section 1446, New York Summons and Notice, Removal Trigger, Removal Trap

JEL Classification: K00, K41, K40