In today’s litigation practice, a defendant often receives a copy of a filed complaint before it is formally served with the pleading. Sometimes, plaintiff’s counsel emails a copy to the defendant’s counsel after filing. If it is a particularly newsworthy lawsuit, an employee or officer of a corporate defendant may download a copy of the filed complaint from a news website. Or someone may post a copy of the complaint on social media.
Most of the above methods, on their own, do not constitute proper service of process. But are any of them enough to start the 30-day clock for removing a state court action to federal court? The governing statute is not clear:
“The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” 28 U.S.C. § 1446(b)(1).
Could an email constitute “receipt … of a copy of the initial pleading”? If one employee sees the complaint online is that “receipt” sufficient to start the removal period? Given the consequences of missing the 30-day deadline, counsel need clarity on this point. Thankfully, a Supreme Court case dealing with fax machines provides the answer for today’s modern communications.
In Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., a state court breach of contract case, the defendant filed a notice of removal 44 days after receiving a faxed “courtesy copy” of the file-stamped complaint but 30 days after the receipt of formal service of process. Plaintiff sought to remand by arguing that the defendant filed its removal papers 14 days too late. The District Court for the Northern District of Alabama denied the plaintiff’s motion, and instead held that the 30-day clock did not begin running until the defendant was at least served with a summons.
On interlocutory appeal, the Eleventh Circuit reversed, emphasizing the language “receipt . . . or otherwise” and concluding that receiving a copy of the complaint without formal service was enough to start the clock. But the Supreme Court granted certiorari and then reversed in a 6-3 opinion by Justice Ginsburg.
The Supreme Court ruled that receipt of a copy of the complaint without formal service cannot commence the 30-day removal period and that only proper service on the defendant would commence the 30-day period. The Court emphasized the historic function and practical importance of service of process – a “bedrock principle” that is “fundamental to any procedural imposition on a named defendant.” Because service of some sort is required before a court may assert jurisdiction over a defendant, the removal clock should not be able to run before a defendant is served.
The Court recognized four situations in which the 30-day clock could start: (1) if the summons and complaint are served together, the 30-day removal period runs at once; (2) if the defendant is served with the summons and later provided with the complaint, the removal period runs from defendant’s receipt of the complaint; (3) if the defendant is served with the summons, the complaint is filed in court, and local rules do not require service of the complaint, the removal period runs from the date the complaint is filed; and (4) if the complaint is filed in court before any service, the removal period runs from service of the summons.
In most jurisdictions, defense counsel can rest assured that proper service of the original complaint is required to start the removal period. In New York, however, in 2001, the Second Circuit settled a long-running dispute between various District Courts by holding that service of a summons with notice in state court – without a complaint – may start the 30-day clock if the notice contains facts sufficient to enable the defendant to “intelligently ascertain” removability. Whitaker v. Am. Telecasting, Inc.
Several courts have extended Murphy Bros. ruling to more modern technologies by holding that where an email does not constitute proper service, then an emailed complaint does not start the 30-day clock. Maddaloni Jewelers, Inc. v. Rolex Watch U.S.A., Inc. (emailed complaint was mere “courtesy copy” as in Murphy Bros.). But when service by email is allowed, then the 30-day removal period begins to run from the date of receipt of the emailed complaint. Medford Commons, LLC v. Lexon Ins. Co. Thus, counsel must also be aware that, as the law slowly adapts to modern technology, new means of effectuating service may be implemented.
Some courts have applied the Murphy Bros. rule to an amended complaint, as opposed to the initial pleading. Rosset v. Hunter Eng’g Co., (emailed amended complaint did not constitute formal service and thus did not start 30-day clock); Lerma v. URS Fed. Support Servs. (same).
Although not dealing with an emailed copy, it is worth noting that at least one court has ruled that a particular form of receipt of an amended complaint, without service, did start the 30-day clock. There, the court held that receipt of an amended complaint asserting new federal claims attached to a motion for leave to amend is sufficient to start the removal clock – even before service. Dutro v. Hilarides, report and recommendation adopted, 2012 WL 1856503 (E.D. Cal. May 21, 2012) (“the thirty-day removal window began to run when defendants received the amended pleading”). While Durto did not deal with email, it raises a question as to how that court would address an emailed courtesy copy of an amended pleading that first raises grounds for removal.