For federal practitioners only

The Federal Rules of Civil Procedure, and other procedural statutes in the United States Code, are a carefully-crafted set of rules that do not lend themselves to creative judicial interpretations. Unlike other statutes that contain vague or brief language, the Rules seem to anticipate any problem that may arise in civil litigation. Creativity in getting around the rules will usually fail. Like in this case.

The case is Taylor v. Medtronic, issued on September 30. Plaintiff sued this company over a defective mesh implant used during hernia surgery. He brought the case in Supreme Court, County of Broome, suing multiple defendants. For whatever reason, the defendants wanted to remove the case to federal court, which they can do if the parties are from different states and the case is valued over $75,000. If those removal factors are met, then removal to federal court is easy. 

It was not easy in this case, though. Under the removal statute, all defendants must agree to remove the case to federal court. Without unanimity, the plaintiff is left to litigate case against different defendants in state and federal court. Also, without unanimity, one defendant does not get to choose the forum for all other defendants. Who wants that? No one.  

In order to effectuate removal, all defendants must file a notice of removal within 30 days. Most defendants in this case did so, but not all. One defendant was untimely in filing its notice of removal. It failed to timely remove because it had mistakenly believed it was not properly served with the lawsuit. While the district court excused the late filing and allowed the case to be removed to state court, the Court of Appeals (Pooler, Park and Sullivan) reverses, and the case returns to Broome County. The Second Circuit reasons, "A properly served defendant cannot cure a failure to timely consent to removal by opposing a motion for remand when the opposition is filed after the thirty-day statutory period for removal lapsed."