Barbour v. International Union

ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHIRLEY M. BARBOUR; HARRY M. 

BARKER; ANTHONY BURTON;

WILLIAM J. CLINE; BARBARA

FAULKNER; RAYMOND N. FLECK, JR.;

ARTHUR HAMILTON, II; DANIEL L.

HAMM; TROY L. HARRIS; GARY

LANDAU; VINCENT MARRA; PEGGY

A. MURPHY; RICHARD DOUGLAS

PERMENTER; PATRICIA PIERSON;

JEFFREY N. ROBERTS; ANNIE SMITH

RODGERS; REESS H. SCOTT; JOYCE

SEE; RONEY SMITH; FRED M.

STEWART; DANIEL LEE TICHNELL;  No. 08-1740

ROBERT THOMAS; CHARLES F.

WADKINS,

Plaintiffs-Appellants,

v.

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA; LOCAL NO. 1183 OF

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS



2 BARBOUR v. INTERNATIONAL UNION

OF AMERICA; LOCAL NO. 1212 OF 

INTERNATIONAL UNION, UNITED

AUTOMOBILE, AEROSPACE AND

AGRICULTURAL IMPLEMENT WORKERS

OF AMERICA,

Defendants-Appellees.



AMERICAN FEDERATION OF LABOR

AND CONGRESS OF INDUSTRIAL

ORGANIZATIONS,

Amicus Supporting Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(1:08-cv-01076-AMD)

Argued: September 23, 2010

Decided: January 27, 2011

Before TRAXLER, Chief Judge, WILKINSON,

NIEMEYER, MOTZ, KING, GREGORY, SHEDD,

DUNCAN, AGEE, KEENAN, and WYNN, Circuit Judges,

and HAMILTON, Senior Circuit Judge.*

Vacated and remanded by published opinion. Senior Judge

Hamilton wrote the opinion, in which Judges Motz, King,

Gregory, Shedd, Keenan, and Wynn joined. Judge Agee wrote

*Judges Michael, Davis, and Diaz did not sit with the en banc court or

participate in this decision.

BARBOUR v. INTERNATIONAL UNION 3

a separate opinion concurring in the judgment, in which Chief

Judge Traxler and Judges Wilkinson, Niemeyer, and Duncan

joined.

COUNSEL

ARGUED: Thomas C. Costello, COSTELLO LAW GROUP,

Baltimore, Maryland, for Appellants. Ava Barbour, INTER-

NATIONAL UNION, UAW, Detroit, Michigan, for Appel-

lees. James B. Coppess, AFL-CIO, Washington, D.C., for

Amicus Supporting Appellees. ON BRIEF: John H. West,

III, WEST & COSTELLO, LLC, Baltimore, Maryland, for

Appellants. Wendy L. Kahn, Jeffrey W. Burritt, ZWERD-

LING, PAUL, KAHN & WOLLY, PC, Washington, D.C., for

Appellees. Lynn K. Rhinehart, Lorrie E. Bradley, AFL-CIO,

Washington, D.C., for Amicus Supporting Appellees.

OPINION

HAMILTON, Senior Circuit Judge:

Twenty-three former employees (the Retirees) of Chrysler

Corporation (Chrysler) brought this action against the Interna-

tional Union, United Automobile, Aerospace and Agricultural

Implement Workers of America (the International), Local No.

1183 of the International Union, United Automobile, Aero-

space and Agricultural Implement Workers of America (Local

1183), and Local No. 1212 of the International Union, United

Automobile, Aerospace and Agricultural Implement Workers

of America (Local 1212), in the Circuit Court for Cecil

County, Maryland.1 The UAW removed the action to the

United States District Court for the District of Maryland,

1

We refer to the International, Local 1183, and Local 1212 collectively

as the UAW.

4 BARBOUR v. INTERNATIONAL UNION

alleging that the claims asserted by the Retirees were com-

pletely preempted by federal labor law. After the UAW

sought Rule 12(b)(6) dismissal on a variety of grounds, the

Retirees moved to remand the case back to Maryland state

court, alleging that the notice of removal was untimely filed,

and, alternatively, that their claims were not completely pre-

empted. The district court denied the motion to remand, hold-

ing that the notice of removal was timely filed. The district

court also granted the motion to dismiss, holding that,

although the Retirees’ claims were completely preempted, the

claims were barred by the six-month statute of limitation con-

tained in § 10(b) of the National Labor Relations Act, 29

U.S.C. § 160(b). The Retirees challenge these rulings on

appeal. For the reasons stated below, we agree with the Retir-

ees that the district court erred when it denied the motion to

remand, because the UAW’s notice of removal was untimely

filed. Accordingly, we vacate the district court’s judgment

and remand the case to the district court with instructions to

remand the case to Maryland state court. In light of our hold-

ing on the removal issue, we do not reach the Retirees’ argu-

ments concerning the district court’s preemption and statute

of limitation rulings.

I

Prior to their January 31, 2007 retirement from Chrysler,

the Retirees were employed by Chrysler at its automobile

assembly plant (the Plant) in Newark, Delaware. Each of the

Retirees were members of the International, and were mem-

bers of either Local 1183 or Local 1212.

By the end of 2006, each of the Retirees had the requisite

years of service with Chrysler to qualify for retirement with

full benefits. However, each of the Retirees faced a difficult

retirement decision. Through a variety of sources, including,

but not limited to, statements from representatives and offi-

cers of the International, Local 1183, and Local 1212, the

Retirees became aware that Chrysler was planning to reduce

BARBOUR v. INTERNATIONAL UNION 5

the size of its work force and that the Plant was "a prime can-

didate for a work force reduction." (J.A. 27). Based on their

previous experience with work-force reductions, the Retirees

believed that it was in their best interests to continue to work

and forego retirement in order to determine whether the work-

force reduction would include financial incentives to

retirement-eligible employees.

Desiring to reap the benefit of any financial incentives to

retirement-eligible employees, the Retirees sought the advice

and counsel of the UAW to determine the "best course of

action to preserve their eligibility to receive the financial ben-

efits of a retirement package." (J.A. 28). According to the

Retirees, the UAW advised them to delay their retirement

until January 31, 2007, because, "by retiring in the calendar

year 2007, any retirement package offered in 2007 would

include the [Retirees] and any other UAW member who

retired during the year 2007." (J.A. 28). Based on this advice,

the Retirees submitted the required paperwork to effectuate a

retirement date of January 31, 2007.

Between the time they submitted their retirement paper-

work and January 31, 2007, many of the Retirees received

information that the offer of a retirement package to

retirement-eligible employees was "imminent." (J.A. 28).

Consequently, some of the Retirees considered withdrawing

their retirement paperwork and continuing to work until a

firm announcement concerning financial incentives to

retirement-eligible employees was made. In response, UAW

representatives and officers informed the Retirees that it was

unnecessary to withdraw their paperwork, because no retire-

ment package was "‘coming down’" and that any retirement

package offered in 2007 would be retroactive to January 31,

2007 and include all who retired on or after that date in 2007.

(J.A. 29). Relying on these representations, each of the Retir-

ees retired on January 31, 2007.

Two weeks later, Chrysler announced that it would be

offering retirement incentive packages, with the agreement

6 BARBOUR v. INTERNATIONAL UNION

and approval of the UAW, for eligible employees at the Plant.

The retirement package offered had a value of approximately

$70,000 for each retiring employee. However, the terms of the

retirement package approved and agreed to by the UAW

excluded the Retirees, because the retirement package applied

prospectively, not retroactively.

On February 11, 2008, the Retirees filed a two-count com-

plaint in the Circuit Court for Cecil County, Maryland. Count

One asserted a claim under Maryland state law for negligent

misrepresentation. The Retirees alleged that the UAW "owed

[them] both legal and fiduciary duties . . . to disclose all mate-

rial facts with regard to the status of the UAW’s negotiations

with Chrysler to the extent those negotiations impacted [the

Retirees’] decision to retire." (J.A. 52-53). Count One also

alleged that the UAW "had a duty to refrain from misrepre-

senting and omitting material facts regarding" such negotia-

tions. (J.A. 53). The Retirees alleged that the UAW "made at

least one or more of the following material misrepresentations

of fact": (1) "No retirement package was ‘coming down’ or

being currently negotiated by the UAW with Chrysler"; and

(2) "Any retirement package negotiated between the UAW

and Chrysler in 2007 would be retroactive and would apply

to any employee who retired on or after January 31, 2007."

(J.A. 53).

Count Two asserted a negligence claim under Maryland

state law. This count alleged that the UAW breached "duties

of care, fidelity and loyalty to ensure that all material facts

regarding their relationship were fully disclosed and all

actions taken on behalf of [the Retirees] were for their protec-

tion and in their best interests." (J.A. 55). The UAW allegedly

breached such duties by failing to: (1) "advise [the Retirees]

of the true nature and extent of their negotiations with Chrys-

ler"; (2) keep the officers and representatives of Locals 1183

and Local 1212 apprised of the true nature and extent of the

International’s negotiations with Chrysler; and (3) "warn [the

Retirees] that voluntary retirement of their employment

BARBOUR v. INTERNATIONAL UNION 7

before the official announcement of a retirement package

would preclude them from being eligible for the receipt of

future retirement packages offered during the 2007 calendar

year." (J.A. 55-56).

The International was served with a copy of the complaint

on March 20, 2008. Local 1183 was served with process on

March 29, 2008. On April 28, 2009, more than thirty days

after service on the International, but within thirty days of ser-

vice on Local 1183, but before Local 1212 was served, all

three defendants filed a joint notice of removal in the United

States District Court for the District of Maryland.

According to the notice of removal, "[a]lthough [the Retir-

ees] characterize their claims as state law claims, the duty of

care that [the Retirees] maintain[] it is owed from [the UAW]

. . . is the duty of fair representation, . . . which arises from

UAW’s status from its exclusive bargaining authority pursu-

ant to section 9(a) of the National Labor Relations Act, 29

U.S.C. § 159." (J.A. 13). The notice further averred that,

"[b]ecause the NLRA is an ‘act regulating interstate com-

merce,’ this Court has jurisdiction pursuant to 28 U.S.C.

§ 1337." (J.A. 13).

On May 5, 2008, the UAW filed a motion to dismiss pursu-

ant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

In the motion, the UAW argued, among other things, that the

Retirees’ claims were barred by the six-month statute of limi-

tation contained in § 10(b) of the National Labor Relations

Act, 29 U.S.C. § 160(b).

On May 28, 2008, the Retirees filed a motion to remand the

case to Maryland state court. According to the Retirees, the

notice of removal was untimely, and, alternatively, there was

no basis for federal jurisdiction. On June 12, 2008, the district

court issued a memorandum and order denying the Retirees’

motion to remand and granting the UAW’s motion to dismiss.

The district court did not specifically address the timeliness of

8 BARBOUR v. INTERNATIONAL UNION

the UAW’s removal. Rather, the district court noted that the

Retirees had "artfully" attempted to "‘plead around’ the pre-

emptive force of federal labor law" and that their state law

claims were "completely pre-empted by the federal duty of

fair representation" in § 9(a) of the National Labor Relations

Act, id. § 159(a). (J.A. 127). The district court found that

"[t]he breach of that duty, if any, is a matter of federal, not

state, law." (J.A. 127). Concurrent with its denial of the Retir-

ees’ motion to remand, the district court granted the UAW’s

motion to dismiss, concluding that the claims were barred by

the six-month statute of limitation contained in § 10(b) of the

National Labor Relations Act, 29 U.S.C. § 160(b).

On June 13, 2008, the Retirees filed a motion for reconsid-

eration. On the same day, the district court denied the motion.

The district court held that the joint notice of removal was

timely filed, noting that the "case . . . [provides] an excellent

opportunity for the Fourth Circuit to clarify whether the ‘first-

filed’ ‘dictum’" in McKinney v. Board of Trustees of Mayland

Community College, 955 F.2d 924 (4th Cir. 1992), "means

what it actually seems to say." (J.A. 132). The district court

also reaffirmed its earlier ruling on the preemption issue, but,

curiously, the district court did not address the Retirees’

request for reconsideration of the statute of limitation issue.

The Retirees noted a timely appeal. On appeal, a divided

panel of this court affirmed the district court’s ruling that the

joint notice of removal had been timely filed, but reversed its

holding that the Retirees’ claims were completely preempted

by federal labor law. See Barbour v. Int’l Union, 594 F.3d

315 (4th Cir. 2010). On May 6, 2010, the panel opinion was

vacated, as a majority of active circuit judges voted to rehear

this case en banc. See Fourth Circuit Local Rule 35(c)

("Granting of rehearing en banc vacates the previous panel

judgment and opinion.").

II

On appeal, the Retirees first challenge the district court’s

ruling that the joint notice of removal was timely filed. Our

BARBOUR v. INTERNATIONAL UNION 9

review is de novo. See Payne ex rel. Estate of Calzada v.

Brake, 439 F.3d 198, 203 (4th Cir. 2006) ("For questions con-

cerning removal to federal court, our standard of review is de

novo.").

"Federal courts are courts of limited jurisdiction. They pos-

sess only that power authorized by Constitution and statute,

. . . which is not to be expanded by judicial decree." Kokkonen

v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377

(1994). We presume "that a cause lies outside this limited

jurisdiction, . . . and the burden of establishing the contrary

rests upon the party asserting jurisdiction." Id. Removal stat-

utes, in particular, must be strictly construed, inasmuch as the

removal of cases from state to federal court raises significant

federalism concerns. See Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09 (1941) ("The power reserved to

the states under the Constitution to provide for the determina-

tion of controversies in their courts, may be restricted only by

the action of Congress in conformity to the Judiciary Articles

of the Constitution."); see also Healy v. Ratta, 292 U.S. 263,

270 (1934) ("Due regard for the rightful independence of state

governments, which should actuate federal courts, requires

that they scrupulously confine their own jurisdiction to the

precise limits which the statute has defined."); Maryland Sta-

dium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255, 260 (4th Cir.

2005) (noting our duty to construe removal jurisdiction

strictly because of the significant federalism concerns impli-

cated by removal). Doubts about the propriety of removal

should be resolved in favor of remanding the case to state

court. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th

Cir. 2004) (en banc); Hartley v. CSX Transp., Inc., 187 F.3d

422, 425 (4th Cir. 1999).

Section 1441(a) of Title 28 of the United States Code pro-

vides that "the defendant or the defendants" may seek to

remove "any civil action brought in a State court of which the

district courts of the United States have original jurisdiction."

28 U.S.C. § 1441(a). Section 1446 of Title 28 describes the

10 BARBOUR v. INTERNATIONAL UNION

appropriate removal procedure to invoke federal jurisdiction,

and requires the defendant seeking removal to file a timely

notice of removal stating the grounds for removal with the

appropriate federal district court. Id. §§ 1446(a) & (b). In

order to be timely,

[t]he notice of removal of a civil action or proceed-

ing shall be filed within thirty 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

....

Id. § 1446(b). The thirty-day window for removal is designed

to prevent "undue delay in removal and the concomitant waste

of state judicial resources." Lovern v. Gen. Motors Corp., 121

F.3d 160, 163 (4th Cir. 1997).

If a case involves a single defendant, the operation of

§ 1446(b) is straightforward. The defendant must file the

notice of removal within thirty days of service. When a case

involves multiple defendants, the operation of § 1446(b) gets

precarious, because, unlike § 1446(a), § 1446(b) does not

speak in terms of multiple defendants. Clearly, if all of the

defendants are served on the same day, the notice of removal

must be filed within thirty days of the date of service, and all

the defendants must consent to and join the notice of removal.

See Creasy v. Coleman Furniture Corp., 763 F.2d 656, 660

(4th Cir. 1985) (noting that "all of the defendants must agree

to the removal of the state court action"); see also Abrego

Abrego v. The Dow Chemical Co., 443 F.3d 676, 681 (9th Cir.

2006) (noting that all served defendants must join in the

notice of removal); Gossmeyer v. McDonald, 128 F.3d 481,

489 (7th Cir. 1997) (same). However, if the defendants are

served on different days, two questions arise. First, must the

notice of removal be filed within thirty days of service on the

first-served defendant or can the notice be filed within thirty

days of service on the last-served defendant? Second, if the

BARBOUR v. INTERNATIONAL UNION 11

notice of removal must be filed within thirty days of service

on the first-served defendant, do all of the defendants have to

join the notice within thirty days of service on the first-served

defendant or can each defendant join within thirty-days of the

date they are served?

The first circuit court to tackle the defendants-served-on-

different-days dilemma was the Fifth Circuit in Brown v.

Demco, Inc., 792 F.2d 478 (5th Cir. 1986). In that case, the

plaintiff filed an action in Louisiana state court and promptly

served the then-existing defendants. Id. at 480. After a lengthy

period of discovery, the plaintiff added two additional defen-

dants. Id. The additional defendants promptly sought removal,

with the consent of the original-served defendants. Id. In

response, the plaintiff and the intervenor-insurer moved to

remand the case to state court on the ground that the removal

was untimely. Id. The district court denied the motion, and the

intervenor-insurer sought and obtained permission to appeal.

Id.

On appeal, the Brown court reversed. After finding that the

intervenor-insurer had standing to challenge the denial of the

motion to remand, the Brown court observed that "[t]he gen-

eral rule . . . is that ‘[i]f the first served defendant abstains

from seeking removal or does not effect a timely removal,

subsequently served defendants cannot remove . . . due to the

rule of unanimity among defendants which is required for

removal.’" Id. at 481 (quoting Tri-Cities Newspapers, Inc. v.

Tri-Cities Printing Pressmen & Assistants’ Local 349, 427

F.2d 325, 326-27 (5th Cir. 1970)). In so observing, the Brown

court rejected the notion that the "general rule" was unfair

because it prevented later-served defendants from persuading

earlier-served defendants to remove the case:

[W]e do not perceive the suggested unfairness to the

subsequently added defendant who is merely not

granted an opportunity that might have been avail-

able to others. A defendant who is added to a case

12 BARBOUR v. INTERNATIONAL UNION

in which a co-defendant has failed to seek removal

is in no worse position than it would have been in if

the co-defendant had opposed removal or were

domiciled in the same state as the plaintiff.

Id. at 482.

The Brown court only answered the first question—when

must the notice of removal be filed—posed by the defendants-

served-on-different days dilemma. Two years later, however,

in Getty Oil Corp. v. Insurance Co. of North America, 841

F.2d 1254 (5th Cir. 1988), the Fifth Circuit addressed the sec-

ond question, that is, whether later-served defendants must

join the notice of removal within the first-served defendant’s

thirty-day window. The court answered the question in the

affirmative, adopting what is commonly referred to as the

"First-Served Defendant Rule." Id. at 1262-63. Succinctly put,

the First-Served Defendant Rule requires a notice of removal

to be filed within thirty days of service on the first-served

defendant and requires all defendants to join the notice of

removal within the first-served defendant’s thirty-day win-

dow.

In Getty Oil, three defendants were served, the first on Sep-

tember 3, 1986, the second on September 5, 1986, and the

third on September 24, 1986. Id. at 1256. The first and second

defendants petitioned for removal on September 26, 1986, but

the third defendant joined the petition on October 24, 1986,

which was thirty days after it was served but fifty-one days

after the first defendant was served. Id. The Getty Oil court

held that: (1) a notice of removal must be filed within thirty

days of the date of service on the first-served defendant and

(2) a later-served defendant must join the notice of removal

"no later than thirty days from the day on which the first

defendant was served." Id. at 1263. In so holding, the Getty

Oil court reasoned that the First-Served Defendant Rule

promotes unanimity among the defendants without

placing undue hardships on subsequently served

BARBOUR v. INTERNATIONAL UNION 13

defendants. Indeed, if a removal petition is filed by

a served defendant and another defendant is served

after the case is thus removed, the latter defendant

may still either accept the removal or exercise its

right to choose the state forum by making a motion

to remand.

Id. (footnote omitted). The court also noted that, "by restrict-

ing removal to instances in which the statute clearly permits

it, the [First-Served Defendant Rule] is consistent with the

trend to limit removal jurisdiction and with the axiom that the

removal statutes are to be strictly construed against removal."

Id. n.13.

Almost four years after Getty Oil, we addressed the two

questions raised by the defendants-served-on-different-days

dilemma and adopted what is commonly referred to as the

"McKinney Intermediate Rule." Like the First-Served Defen-

dant Rule, the McKinney Intermediate Rule requires a notice

of removal to be filed within the first-served defendant’s

thirty-day window, but gives later-served defendants thirty

days from the date they were served to join the notice of

removal.

In McKinney, a group of dismissed employees of Mayland

Community College sued the college’s board of trustees in

their individual and official capacities in North Carolina state

court, alleging unlawful discharge. 955 F.2d at 925. Three of

the twelve defendants were served on April 25, 1988, while

eight others were served on May 19, 1988. Id. The three

members of the first group and seven of the eight from the

second group filed for removal on May 25, 1998, thirty days

after service on the first three. Id. The defendants could not

find the eighth defendant in the second group to obtain her

consent to the notice of removal. Id. The plaintiffs served the

final, twelfth defendant after the filing of the notice of

removal. Id. The eighth and twelfth defendants joined in the

notice of removal on June 20, 1998, which was the thirtieth

14 BARBOUR v. INTERNATIONAL UNION

day from the time of service on the eighth defendant and well

within the time limit for the twelfth defendant, but more than

thirty days after the first three defendants had been served. Id.

In moving to remand the case to state court, the plaintiffs

argued that the defendants were required to consent to the

notice of removal within thirty days of service on the first

group of defendants. Id. The district court rejected that con-

tention, holding that individual defendants have thirty days

from the time they are served with process or with a com-

plaint to join in an otherwise valid notice of removal. Id.

Our decision in McKinney addressed both of Getty Oil’s

holdings concerning the timeliness of removal. With regard to

Getty Oil’s first holding, we noted our explicit agreement with

that holding, stating that the first-served defendant "clearly

must petition for removal within thirty days." Id. at 926. In

Footnote 3 of our opinion, we agreed with the necessary cor-

ollaries to the principle that a timely notice of removal must

be filed within thirty days of service on the first-served defen-

dant:

In a different situation, where B is served more than

30 days after A is served, two timing issues can

arise, and the law is settled as to each. First, if A

petitions for removal within 30 days, the case may

be removed, and B can either join in the petition or

move for remand. . . . Second, if A does not petition

for removal within 30 days, the case may not be

removed.

Id. at 926 n.3.2

2

Some courts in our circuit have viewed Footnote 3 and our approval

of Getty Oil’s first holding as dicta, opining that it was not necessary for

the McKinney court to determine whether a notice of removal must be

filed within thirty days of service on the first-served defendant. See, e.g.,

Superior Painting & Contracting Co. v. Walton Tech., Inc., 207 F. Supp.

BARBOUR v. INTERNATIONAL UNION 15

With regard to Getty Oil’s second holding, that a later-

served defendant must join the notice of removal within thirty

days of the date of service on the first-served defendant, we

rejected that holding. In doing so, we made three observa-

tions. First, we observed that nothing in § 1446(b) implied "in

any way that later served defendants have less than thirty days

in which to act." Id. Second, we observed that it would be "in-

equitable" to require a later-served defendant to join a timely

filed notice of removal within thirty days of the date of ser-

vice on the first-served defendant. Id. at 927. Third, we

observed that to require a later-served defendant to join a

timely filed notice of removal within thirty days of the date

of service on the first-served defendant would necessitate

adding the term "first" before "defendant" in § 1446(b). Id.

We then turned to plaintiffs’ argument that they should be

entitled to know within a prescribed period of time whether

the case will proceed in state or federal court. In rejecting this

argument, we first noted that, if the plaintiffs wanted to know

in which court they will be at the earliest possible date, they

need only to make sure that all defendants are served at about

the same time. Id. Second, we noted that the plaintiffs’ entitle-

ment was no greater than the defendant’s right to remove a

case that could be heard in federal court. Id.

2d 391, 393 n.4 (D. Md. 2002) (opining that Footnote 3 and our approval

of Getty Oil’s first holding are dicta); Branch v. Coca-Cola Bottling Co.

Consol., 83 F. Supp. 2d 631, 634 (D.S.C. 2000) (same). Nevertheless, only

one district court in this circuit has declined to follow the McKinney Inter-

mediate Rule. See Ratliff v. Workman, 274 F. Supp. 2d 783, 787 (S.D. W.

Va. 2003) (declining to follow McKinney Intermediate Rule because of

intervening Supreme Court precedent, namely, Murphy Brothers, Inc. v.

Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)). As the court is sitting

en banc, it is unnecessary to decide whether Footnote 3 and our approval

of Getty Oil’s first holding are dicta. Cf. Hoffman v. Hunt, 126 F.3d 575,

584 (4th Cir. 1997) ("A decision of a panel of this court becomes the law

of the circuit and is binding on other panels unless it is overruled by a sub-

sequent en banc opinion of this court or a superseding contrary decision

of the Supreme Court.") (citations and internal quotation marks omitted).

16 BARBOUR v. INTERNATIONAL UNION

Finally, we considered a policy concern in McKinney,

which was not present when Getty Oil was decided. In 1988,

Congress amended § 1446(a) to make notices of removal sub-

ject to Rule 11 of the Federal Rules of Civil Procedure. Id. at

928. We observed that, as amended, § 1446(a) is a further rea-

son to allow all defendants a full thirty days to investigate the

appropriateness of removal. Id. Otherwise, a later-served

defendant faces a Hobson’s Choice: either to join hurriedly in

a notice of removal and face possible Rule 11 sanctions or to

forego removal. Id. In the McKinney court’s view, Congress

did not intend to impose such a Hobson’s Choice on a later-

served defendant. Id.

Since our decision in McKinney, three other circuits have

addressed the defendants-served-on-different days dilemma

and have rejected the First-Served Defendant Rule and the

McKinney Intermediate Rule in favor of what is commonly

referred to as the "Last-Served Defendant Rule." See Bailey

v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1209 (11th

Cir. 2008); Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254

F.3d 753, 757 (8th Cir. 2001); Brierly v. Alusuisse Flexible

Packaging, Inc., 184 F.3d 527, 533 (6th Cir. 1999). In a nut-

shell, the Last-Served Defendant Rule "permits each defen-

dant, upon formal service of process, thirty days to file a

notice of removal pursuant to § 1446(b)," Bailey, 536 F.3d at

1209, and "[e]arlier-served defendants may choose to join in

a later-served defendant’s motion or not." Id. at 1207.

In Brierly, the plaintiff filed a wrongful death action in

Kentucky state court on May 12, 1994, naming two defen-

dants. 184 F.3d at 530. The first was promptly served in June

1994, but the second was not served until the fall of 1995. Id.

at 530-31. Within thirty days of being served, the second

defendant filed a notice of removal which was consented to

by the first defendant. Id. at 531. Thereafter, the district court

denied the plaintiff’s motion to remand. Id.

In adopting the Last-Served Defendant Rule, the Brierly

court opined that adopting the First-Served Defendant Rule

BARBOUR v. INTERNATIONAL UNION 17

would require the court to insert the word "‘first’" into

§ 1446(b). Brierly, 184 F.3d at 533. The court also observed

that, "[i]f Congress had intended the 30-day removal period

to commence upon service of the first defendant, it could have

easily so provided." Id. Finally, the court was persuaded that

the Last-Served Defendant Rule was necessary "as a matter of

fairness to later-served defendants." Id.

In Marano, the plaintiff filed a fraud and breach of contract

action in Missouri state court. 254 F.3d at 754. Two of the

defendants were served on February 1, 2000, and two were

served on February 3, 2000. Id. On March 3, 2000, thirty-one

days after the February 1 service, but twenty-nine days after

the February 3 service, all the defendants (including the fifth

and final defendant who had not yet been served) jointly filed

a notice of removal. Id. The plaintiff filed a motion to remand,

which the district court denied. Id.

In its analysis, the Marano court outlined the holdings of

the Fifth Circuit in Brown and Getty Oil, our circuit in McKin-

ney, and the Sixth Circuit in Brierly and, without discussion,

found none of the positions "particularly compelling" because

they are all "susceptible to abuse and have potential to create

inequities." Id. at 756. However, the Marano court was per-

suaded to adopt the Last-Served Defendant Rule based on the

Supreme Court’s decision in Murphy Brothers. Id. at 756-57.

In Murphy Brothers, the Court held that a defendant’s time to

remove "is triggered by simultaneous service of the summons

and complaint, or receipt of the complaint, ‘through service or

otherwise,’ after and apart from service of the summons, but

not by mere receipt of the complaint unattended by any for-

mal service." 526 U.S. at 348. According to the Marano court,

[In Murphy Brothers,] [t]he Court held that formal

process is required, noting the difference between

mere notice to a defendant and official service of

process: "An individual or entity named as a defen-

dant is not obliged to engage in litigation unless noti-

18 BARBOUR v. INTERNATIONAL UNION

fied of the action, and brought under a court’s

authority, by formal process." . . . Thus, a defendant

is "required to take action" as a defendant—that is,

bound by the thirty-day limit on removal—"only

upon service of a summons or other authority-

asserting measure stating the time within which the

party served must appear and defend." . . . The Court

essentially acknowledged the significance of formal

service to the judicial process, most notably the

importance of service in the context of the time lim-

its on removal (notwithstanding an earlier admoni-

tion by the Court in Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868, 85 L.

Ed. 1214 (1941), for strict construction of the

removal statute). We conclude that, if faced with the

issue before us today, the Court would allow each

defendant thirty days after receiving service within

which to file a notice of removal, regardless of

when—or if—previously served defendants had filed

such notices.

254 F.3d at 756.

In Bailey, the plaintiff brought a wrongful death action in

Florida state court on February 28, 2006. 536 F.3d at 1204.

The first defendant was served on May 12, 2006, the second

on May 15, 2006, the third on May 19, 2006, and the fourth

on June 22, 2006. Id. On July 24, 2006 (July 22 was a Satur-

day), the fourth-served defendant filed a notice of removal of

the action based on complete diversity pursuant to § 1446(b).

Id. The plaintiff filed a motion to remand, which the district

court denied. Id.

On appeal, the Bailey court put forth a variety of reasons

supporting its decision to adopt the Last-Served Defendant

Rule. Id. at 1205-09. First, the court recognized that the Last-

Served Defendant Rule was the more recent trend in the case

law. Id. at 1205-06. Second, the court was driven by equitable

BARBOUR v. INTERNATIONAL UNION 19

considerations, expressing concern that the First-Served

Defendant Rule: (1) causes later-served defendants to lose

their statutory right of removal through no fault of their own;

and (2) eliminates the opportunity for later-served defendants

to persuade earlier-served defendants to seek removal. Id. at

1206-07. Third, the Bailey court reasoned that the First-

Served Defendant Rule requires reading "first-served" into

§ 1446(b), whereas § 1446(b), "as written, could reasonably

be read to permit each defendant a right to remove within

thirty days of service on the individual defendant." Id. at

1207. Fourth, the Bailey court was not convinced that the

First-Served Defendant Rule was more consistent with the

rule of unanimity than the Last-Served Defendant Rule Id.

Finally, the Bailey court agreed with the Marano court that

the Supreme Court’s decision in Murphy Brothers supported

the endorsement of the Last-Served Defendant Rule. Id. at

1207-09.

In our view, the McKinney Intermediate Rule is the most

logical and faithful interpretation of the operation of

§ 1446(b). When interpreting any statute, we must first and

foremost strive to implement congressional intent by examin-

ing the plain language of the statute. Barnhart v. Sigmon Coal

Co., 534 U.S. 438, 450 (2002). "The plainness or ambiguity

of statutory language is determined by reference to the lan-

guage itself, the specific context in which that language is

used, and the broader context of the statute as a whole." Rob-

inson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Section 1446(b) says that if you are a defendant in a cause

of action you are under an obligation to seek removal within

thirty days of receipt of the plaintiff’s complaint. If you do not

seek removal within the thirty-day window, you have for-

feited your right to remove. Here, because the International

did not seek removal within its thirty-day window, the plain

language of § 1446(b) dictates that it forfeited its right to

removal.

20 BARBOUR v. INTERNATIONAL UNION

The question, then, is whether we should decline to follow

the plain language of § 1446(b) simply because there is more

than one defendant in the case who was served on a different

day. In our view, it defies logic to read § 1446(b) any differ-

ently based on this circumstance, because the language of

§ 1446(b) unequivocally requires action by a defendant (seek-

ing removal within thirty days of being served), not inaction.

Equally illogical is the proposition that a first-served defen-

dant in a multiple-defendant case should believe he or she

does not have to act simply because there will be later-served

defendants in the case who may or may not file a notice of

removal. In such a scenario, the first-served defendant’s

excuse for failing to file a timely notice of removal borders

on preposterous—"I did not file a notice of removal because

I was ‘a’ defendant instead of ‘the’ defendant."

To be sure, it seems eminently reasonable that, in drafting

§ 1446(b), Congress intended for the first-served defendant to

decide within his thirty-day window whether to remove the

case to federal court or allow the case to remain in state court.

Such routine removal decisions are made day-in and day-out

in courts all across the Nation. If the first-served defendant

decides not to remove, later-served defendants are not

deprived of any rights under § 1446(b), because § 1446(b)

does not prevent them from removing the case; rather, it is the

rule of unanimity that does. In other words, once the first-

served defendant elects to proceed in state court, the issue

concerning removal is decided under the rule of unanimity.

Alternatively, if the first-served defendant does file a notice

of removal, the later-served defendants dictate whether the

case remains in federal court, either by joining the notice or

declining to do so.

There is a "‘strong presumption’ that the plain language of

the statute expresses congressional intent," Ardestani v. INS,

502 U.S. 129, 135 (1991), and it is only in rare and excep-

tional cases where this presumption is rebutted. Id. In this

case, we see no reason to depart from applying the plain lan-

BARBOUR v. INTERNATIONAL UNION 21

guage of § 1446(b) and letting each defendant, beginning with

the first-served defendant, decide whether the case should be

removed. If the first-served defendant files a notice of

removal, later-served defendants have ample time—thirty

days from the date that each such defendant is served—to

decide whether to join the notice of removal, thus avoiding

the Hobson’s Choice we identified in McKinney. While the

operation of § 1446(b) may appear unfair to some, such oper-

ation is an inevitable feature of a court of limited jurisdiction.

Cf. Russell Corp. v. American Home Assur. Co., 264 F.3d

1040, 1050 (11th Cir. 2001) ("There are several such bright

line limitations on federal removal jurisdiction (e.g. the

removal bar for in-state defendants and the one year time limit

for diversity removals) that some might regard as arbitrary

and unfair. Such limitations, however, are an inevitable fea-

ture of a court system of limited jurisdiction that strictly con-

strues the right to remove.").

The McKinney Intermediate Rule obviously avoids the fatal

flaw in the Last-Served Defendant Rule: The Last-Served

Defendant Rule only applies § 1446(b) to one defendant—the

last-served. Innumerable defendants can intentionally ignore

§ 1446(b) if the last-served defendant can convince the

earlier-served defendants that their intentional decision was in

error.3 It strains credulity to conclude that Congress intended

to allow defendants to flagrantly ignore § 1446(b).

In contrast to the Last-Served Defendant Rule, the McKin-

ney Intermediate Rule seeks to apply § 1446(b)’s requirement

to act within thirty days of service to all defendants, including

the first- and last-served. As noted above, the first-served

defendant must file a notice of removal within thirty days of

service; later-served defendants have to join the notice within

thirty days of service upon them. Interpreting § 1446(b)’s

3

Counsel for the UAW candidly conceded at oral argument that she was

pressing for a rule that would apply § 1446(b) to only one defendant (i.e.,

the last-served) in a defendants-served-on-different-days case.

22 BARBOUR v. INTERNATIONAL UNION

within thirty days of service requirement as applying to all

defendants instead of just one, in our opinion, carries out Con-

gress’ intent in drafting the statute, and avoids reading the

words "first-served" or "last-served" into § 1446(b).4

It is also worth noting that, under the McKinney Intermedi-

ate Rule, the later-served defendants are in no worse position

than they would have been if the parties in the case were not

completely diverse or the first-served defendant (or any other

defendant) had opposed removal. See Brown, 792 F.2d at 482

("A defendant who is added to a case in which a co-defendant

has failed to seek removal is in no worse position than it

4

We recognize that § 1446(b) does not specifically address joinder.

However, it is clear that Congress, in drafting § 1446(b), sought to require

every defendant to take action seeking removal within thirty days of ser-

vice. Such action either is in the form of filing a notice of removal or join-

ing an existing notice. If all defendants act within thirty days of service,

as recognized in McKinney, we avoid reading "first[-served]" into

§ 1446(b). 955 F.2d at 927. This Congressional intent and other equitable

considerations lead us to reject the First-Served Defendant Rule in favor

of the McKinney Intermediate Rule. The McKinney court sought to fashion

a joinder rule that would be fair to both plaintiffs and defendants. Under-

standably, we concluded that, once a timely petition was filed within the

initial thirty-day window, each later-served defendant should have thirty-

days from the date of service in which to join the petition for removal,

because § 1446(b) allows each defendant thirty days in which to act, and,

perhaps more importantly, at that point in time state interests are minimal

(the case is removed) and no defendant has acted in an untimely manner.

Following the First-Served Defendant Rule would require a later-served

defendant to join the petition within the initial thirty-day window, even

though service on that defendant may have occurred more than thirty days

after service on the first-served defendant. This rule, in our view, not only

is contrary to § 1446(b)’s allowance for action within thirty days of ser-

vice, but it also penalizes a defendant who has not acted in an untimely

manner. In contrast to the McKinney Intermediate Rule, the Last-Served

Defendant Rule allows all of the defendants, except the last-served, to

both ignore § 1446(b)’s thirty-day action requirement and act in an

untimely fashion; obviously, the Last-Served Defendant Rule, which

allows a defendant to act in such a fashion, does not vindicate state inter-

ests, as the rule requires, at least in some cases, for the state court to

unnecessarily retain jurisdiction over a particular case.

BARBOUR v. INTERNATIONAL UNION 23

would have been in if the co-defendant had opposed removal

or were domiciled in the same state as the plaintiff."). As

Judge Shedd aptly noted in his district court opinion in

Branch, "[t]he Court sees no reason why [the first-served

defendant’s] failure to remove in a timely manner should be

viewed differently simply because another defendant is in the

case." 83 F. Supp. 2d at 636.

Finally, it is evident that the McKinney Intermediate Rule

is in line with admonitions from the Supreme Court and this

court that we should construe removal statutes narrowly and

that doubts concerning removal should be resolved in favor of

state court jurisdiction. The McKinney Intermediate Rule

requires the first-served defendant to act in a timely manner

to achieve removal. If later-served defendants desire removal,

they need only join a notice of removal that has been filed in

compliance with the time requirements of § 1446(b) and

within thirty days of the date they were served. Such interpre-

tation of § 1446(b) is narrow because it requires compliance

from the outset. Moreover, to the extent there is doubt as to

which rule is the most appropriate, it stands to reason that the

doubt should be resolved in favor of the interpretation that

requires initial—rather than later—compliance with

§ 1446(b).

In sum, we adhere to the McKinney Intermediate Rule, as

this court has for close to nineteen years. Application of such

rule mandates that we remand this case to the district court

with instructions to remand the case to state court, because

there was no notice of removal filed within thirty days of the

date the International was served.

III

A

The courts following the Last-Served Defendant Rule have

put forth numerous rationales supporting their adoption of the

24 BARBOUR v. INTERNATIONAL UNION

rule. None of them survives close scrutiny. First, the court in

Bailey observed "that the trend in recent case law" favored the

Last-Served Defendant Rule. 536 F.3d at 1205. However, a

recent interpretation of § 1446(b) that is inconsistent with the

statute’s plain language and results in a broad construction of

the statute simply cannot be endorsed, for obvious reasons.

Second, the courts in Bailey and Marano pointed to inequi-

ties that flow from the First-Served Defendant Rule and the

McKinney Intermediate Rule, in particular, that the Last-

Served Defendant Rule is necessary to allow later-served

defendants an opportunity to persuade earlier-served defen-

dants to join a notice of removal. Bailey, 536 F.3d at 1206-07;

Marano, 254 F.3d at 755; see also Brierly, 184 F.3d at 533

(noting that "as a matter of fairness to later-served defen-

dants," it endorsed the Last-Served Defendant Rule). How-

ever, it is difficult to believe that Congress intended to protect

this power of persuasion when it enacted § 1446(b). In fact,

this power of persuasion rationale creates such an inequity of

its own that it is surprising that the Bailey and Marano courts

relied upon it at all. The power of persuasion rationale neces-

sarily treats multiple defendants and single defendants differ-

ently. A single defendant who deliberately chooses not to

remove a case cannot change his mind after the thirty-day

window closes. However, if that single defendant is the first-

served in a multiple-defendant case, that defendant gets

another bite at the apple simply because he is part of a

multiple-defendant case. There simply is no language in

§ 1446(b) that can be construed to suggest that Congress

intended to treat single defendants and multiple-defendants

differently in determining the timeliness of removal. Simi-

larly, there is no language in § 1446(b) suggesting that Con-

gress intended to treat multiple defendants served on the same

day differently than multiple defendants served on different

days.

Equally flawed is the notion that the McKinney Intermedi-

ate Rule is inequitable to later-served defendants because,

BARBOUR v. INTERNATIONAL UNION 25

"through no fault of their own, [the later-served defendants]

might . . . lose their statutory right to seek removal." Bailey,

536 F.3d at 1206. This inequity is illusory, because it assumes

that later-served defendants can insist that a case be removed

to federal court. However, if the first-served defendant (or any

other defendant) opposes removal, the case cannot be

removed "through no fault" of the later-served defendants.

Third, the courts in Bailey and Brierly implied that the term

"the defendant" in § 1446(b) is naturally read to be "each

defendant," and this natural reading means that "each defen-

dant" has thirty-days to file a notice of removal. Bailey, 536

F.3d at 1207; Brierly, 184 F.3d at 533. This statutory slight-

of-hand allowed the Bailey and Brierly courts to get around

the obvious import of their interpretation of § 1446(b)—that

it inserts the term "last-served" between "the" and "defen-

dant." But this removal of the definite article "the" does noth-

ing to help the Bailey and Brierly courts’ cause, because the

statute read as such requires each defendant to file a timely

notice of removal. See 28 U.S.C. § 1446(b) ("The notice of

removal . . . shall be filed within thirty days . . . ."). Under the

interpretation of the Bailey and Brierly courts, each defendant

is not filing a timely notice of removal, only the last-served

defendant is so filing. Moreover, under this interpretation,

each defendant is not acting within § 1446(b)’s thirty days of

service requirement. In any event, even with the insertion of

the word "each," if the first-served defendant fails to file a

timely notice of removal, then the rule of unanimity through

the decision of the first-served defendant—not

§ 1446(b)—operates to defeat removal. In effect, the Bailey

and Brierly courts change the word "shall" in § 1446(b) to

"may." For obvious reasons, we are constrained to reject such

a drastic change to the statute.

Fourth, the Bailey court observed that the Last-Served

Defendant Rule is consistent with the rule of unanimity

because it allows earlier-served defendants to join a later-

served defendant’s notice of removal. Bailey, 536 F.3d at

26 BARBOUR v. INTERNATIONAL UNION

1207. This observation is really beside the point. All three of

the rules before the court are consistent with the rule of una-

nimity, because each of them requires all of the defendants at

some point in time to unanimously agree to removal.

The more salient question concerns when the forum selec-

tion decision must be made. The Last-Served Defendant Rule

represents the broadest interpretation of § 1446(b), resulting

in the possibility that the forum selection question may not be

resolved for quite some time, especially if discovery reveals

that additional defendants should be named or if some defen-

dants are difficult to serve. Cf. Brown, 792 F.2d at 481-82

(holding that removal was not warranted where later-served

defendants were added to a four-year old state court action

because no notice of removal was filed within thirty days of

service on the first-served defendant). One could envision

other scenarios that reduce the Last-Served Defendant Rule to

a tool to forum-shop. Put simply, embracing the broadest

interpretation of § 1446(b) simply is inconsistent with the

principle that we must narrowly construe removal statutes.

Shamrock Oil, 313 U.S. at 108-09. Such principle necessarily

means that we penalize plaintiffs, as well as defendants, that

sit on or waive their removal rights. Cf. Buchner v. F.D.I.C.,

981 F.2d 816, 818 (5th Cir. 1993) ("Unquestionably, a party

may implicitly waive its right to remove a case by failing

timely to file a notice of removal. Likewise, a party may

implicitly waive its right to contest the removal of a case on

procedural grounds by failing timely to move for remand.")

(footnotes omitted); DeLia v. Verizon Commc’ns, Inc., 258

F.R.D. 189, 190 n.2 (D. Mass. 2009) (denying Federal Rule

of Civil Procedure 56(f) motion in removed case alleging con-

structive discharge; noting that not all defendants consented

to removal, but that the plaintiff, by failing to raise it within

thirty days of the removal, waived the defect). Holding other-

wise essentially engrafts an "interest of justice" standard into

§ 1446(b), allowing a court to relax the timeliness require-

ments of § 1446(b) when the interests of justice so require.

Obviously, no such standard exists in the statute. Put simply,

BARBOUR v. INTERNATIONAL UNION 27

removal statutes must be construed narrowly, Shamrock Oil,

313 U.S. at 108-09, and any doubt about the propriety of

removal should be resolved in favor of remanding the case to

state court, Dixon, 369 F.3d at 816. Instead of construing the

statute to encourage defendants to act in timely compliance

with § 1446(b), the courts embracing the Last-Served Defen-

dant Rule have done just the opposite. And to the extent there

is doubt about the propriety of removal, such doubt must not

be resolved in favor of an interpretation of § 1446(b) that

requires only one defendant, among many defendants, to com-

ply with the statute.

Fifth, the Bailey and Marano courts relied on the Supreme

Court’s decision in Murphy Brothers. Bailey, 536 F.3d at

1207-09; Marano, 254 F.3d at 756-57. However, it must be

emphasized that Murphy Brothers did not involve multiple

defendants. It involved a single defendant, and the issue to be

decided was which service event triggered the running of the

thirty-day window. 526 U.S. at 347. The plaintiff argued that

the January 29, 1996 service of a faxed courtesy copy of the

complaint triggered the running of the thirty-day window; the

defendant countered that February 12, 1996, the date of for-

mal service in accordance with local law, triggered the run-

ning of the thirty-day window. Id. at 348. The Court held that

a defendant’s time to remove "is triggered by simultaneous

service of the summons and complaint, or receipt of the com-

plaint, ‘through service or otherwise,’ after and apart from

service of the summons, but not by mere receipt of the com-

plaint unattended by any formal service." Id. The Court did

not address, or even mention, the First-Served Defendant

Rule, the McKinney Intermediate Rule, or the Last-Served

Defendant Rule, or, for that matter, consider how to calculate

the period for removal in a case involving multiple defendants

served at different times. Indeed, Murphy Brothers was based

on the principle that "[a]n individual or entity named as a

defendant is not obliged to engage in litigation unless notified

of the action, and brought under a court’s authority, by formal

28 BARBOUR v. INTERNATIONAL UNION

process." Id. at 347. That principle is neither threatened nor

implicated in this case.

The Marano and Bailey courts also seemed concerned that

the First-Served Defendant Rule and/or the McKinney Inter-

mediate Rule required or obligated later-served defendants to

engage in litigation prior to service, thus running afoul of

Murphy Brothers, because the First-Served Defendant Rule

and/or the McKinney Intermediate Rule obligated the later-

served defendants to seek removal prior to their receipt of for-

mal process. Bailey, 536 F.3d at 1208; Marano, 254 F.3d at

756. This reliance on Murphy Brothers rests on a faulty prem-

ise—that the first-served defendant will always consent to the

removal. Without the filing of a notice of removal within the

initial thirty-day window, participation by later-served defen-

dants at that juncture of the litigation is inconsequential, as a

result of the rule of unanimity, a rule that understandably was

not implicated in Murphy Brothers.

B

In its brief, the UAW argues that the Last-Served Defen-

dant Rule is necessary to prevent unscrupulous plaintiffs’

attorneys from manipulating the service of process system in

order to defeat removal. Obviously missing from this argu-

ment is any empirical evidence even remotely suggesting that

such manipulation has occurred or is currently occurring in

the state and federal courts. In fact, the only empirical evi-

dence before the court here are the facts of this case, which

do not favor the UAW. Indeed, the International, Local 1183,

and Local 1212 were all represented by the same attorneys

and the most sophisticated of the three defendants, the Inter-

national, was served first and deliberately chose not to remove

the case.

IV

The separate opinion of our good colleague concurring in

the judgment embraces the Last-Served Defendant Rule for

BARBOUR v. INTERNATIONAL UNION 29

essentially the same reasons espoused by the Sixth, Eighth,

and Eleventh Circuits. However, like the analysis in the cases

from our sister circuits, we find the analysis of the separate

opinion wanting. First, the separate opinion seems more con-

cerned with what § 1446(b) does not say rather than what it

does say. Post at 39-40. Quite clearly, § 1446(b) requires a

single defendant to file a notice of removal. If a single defen-

dant does not file a notice of removal, the case cannot be

removed. The question before us, then, is whether, under the

language of § 1446(b), removal can be achieved by that single

defendant where he or she is part of a larger, multiple-

defendant case and some later-served defendant (served out-

side the single defendant’s thirty-day window) convinces the

single defendant (and all other defendants) that removal is

appropriate. The language of § 1446(b) simply does not allow

for removal under such circumstances, because such language

neither is permissive in nature, nor does it seek to protect the

right of persuasion for later-served defendants.

Second, and along a similar vein, the separate opinion goes

on at length about how its interpretation of § 1446(b) adheres

to the statute’s plain language and does not add words to the

statute. But the separate opinion’s interpretation of § 1446(b)

does just that—it adds the word "each" to the statute. Also,

the separate opinion never recognizes the consequences of its

textual change, that is, that such interpretation changes "shall"

to "may" in § 1446(b). Moreover, the separate opinion’s inter-

pretation of § 1446(b) is premised on the assumption that each

defendant in a multiple-defendant case enjoys a procedural

right to remove a case. Such assumption is incorrect. Rather,

each defendant does not enjoy a procedural right to remove a

case, because such right is conditioned on each and every

defendant joining the notice of removal. In other words, any

defendant can defeat removal. Thus, at the end of the day, the

separate opinion’s interpretation of § 1446(b) seeks to protect

a right that does not exist in the language of the statute, that

is, the right of the last-served defendant to persuade the

earlier-served defendants that removal is appropriate. Put

30 BARBOUR v. INTERNATIONAL UNION

another way, the majority’s gripe is not necessarily with the

language of § 1446(b), but rather with the perceived unfair-

ness in the rule of unanimity, which allows one defendant to

thwart the wishes of his or her fellow defendants.

Third, the separate opinion stresses that its construction of

§ 1446(b) is in line with the principle that we strictly construe

removal statutes. Post at 41. Of course, such stress is prem-

ised on the same erroneous assumption described above—that

each defendant in a multiple-defendant case enjoys a proce-

dural right to remove a case. In any event, the separate opin-

ion’s reliance on the principle of strict construction suffers

from another flaw. The strict construction principle is

designed to protect the interests of the state, as removal mani-

festly deprives a state from preserving the right of one of its

citizens to proceed in state court. It follows, then, that strict

construction requires us to limit the circumstances in which

removal can be obtained, not expand them. Yet, this is exactly

what the separate opinion seeks to achieve. Rather than limit-

ing the time in which the rights of the parties are fixed, thus

preserving state interests, the separate opinion seeks to

broaden the time. Rather than requiring the first-served defen-

dant to decide if he or she should proceed in state or federal

court, the separate opinion would allow such defendant

another bite at the apple. The list could go on, but suffice-it-

to-say the separate opinion pays only lip service to the time-

honored principle of strict construction. And it of course is

silent on the principle that any doubts concerning the propri-

ety of removal should be resolved against removal.

Fourth, the separate opinion also observes that its embrace-

ment of the Last-Served Defendant Rule is "strengthened" by

the Supreme Court’s decision in Murphy Brothers. In doing

so, the separate opinion recognizes that Murphy Brothers is

not directly on point. Post at 45, 46. The separate opinion

essentially adopts the reasoning of the Marano and Bailey

courts, so no extended discussion is necessary. Succinctly put,

Murphy Brothers did not involve multiple defendants and any

BARBOUR v. INTERNATIONAL UNION 31

reliance here on Murphy Brothers rests on the faulty assump-

tions that each defendant enjoys a procedural right to remove

a case and that each defendant will always consent to

removal.

Finally, the separate opinion relies on a perceived inequity

in the McKinney Intermediate Rule, namely, that the McKin-

ney Intermediate Rule prevents the last-served defendant from

persuading earlier-served defendants to join a notice of

removal. Post at 48-49. In Part III, we have adequately

addressed this perceived inequity. Suffice-it-to-say that: (1)

there is no language in § 1446(b) to suggest that Congress

intended to protect this power of persuasion when it enacted

§ 1446(b); (2) this perceived inequity relies on the same faulty

assumption mentioned above; and (3) the power of persuasion

rationale is manifestly unfair, in the sense that it treats multi-

ple defendants and single defendants differently.

V

In summary, Chief Judge Ervin writing for the McKinney

court got it right back in February 1992. The McKinney Inter-

mediate Rule adheres to the plain language of § 1446(b), but,

more importantly, recognizes that federal courts are courts of

limited jurisdiction, that we should construe removal statutes

narrowly, and that any doubts should be resolved in favor of

state court jurisdiction. Accordingly, we vacate the district

court’s decision holding that the joint notice of removal was

timely filed and remand the case to the district court with

instructions to remand the case to state court.

Given that removal was not proper, we must refrain from

addressing the Retirees’ other arguments, namely, that their

claims are not preempted by federal labor law and that their

claims are not barred by the six-month statute of limitation

contained in § 10(b) of the National Labor Relations Act, 29

U.S.C. § 160(b). See Lyng v. Northwest Indian Cemetery Pro-

tective Ass’n, 485 U.S. 439, 445 (1988) ("A fundamental and

32 BARBOUR v. INTERNATIONAL UNION

longstanding principle of judicial restraint requires that courts

avoid reaching constitutional questions in advance of the

necessity of deciding them."); Ashwander v. Tenn. Valley

Auth., 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring)

("The Court will not anticipate a question of constitutional

law in advance of the necessity of deciding it. . . . It is not the

habit of the Court to decide questions of a constitutional

nature unless absolutely necessary to a decision of the case")

(citations and internal quotation marks omitted); Columbia

Venture, LLC v. Dewberry & Davis, LLC, 604 F.3d 824, 828

(4th Cir.) ("We have held that federal preemption of state law

is a constitutional question because it is premised on the

Supremacy Clause of the United States Constitution, and

when a party provides alternative independent state law

grounds for disposing of a case, courts should not decide the

constitutional question of preemption before considering the

state law grounds."), cert. denied, 2010 WL 3644597 (U.S.

November 29, 2010); Bell Atl. Md., Inc. v. Prince George’s

County, 212 F.3d 863, 865 (4th Cir. 2000) (discussing consti-

tutional nature of preemption analysis); see also H & R Block

E. Enter., Inc. v. Raskin, 591 F.3d 718, 723-24 (4th Cir. 2010)

(applying Bell Atlantic to remand the case for consideration

of whether the statute applied to the plaintiff before deciding

whether it was preempted).5

VACATED AND REMANDED

AGEE, Circuit Judge, concurring in the judgment:

While I concur in the judgment of the Court, I respectfully

disagree with the basis upon which the majority opinion rests

that judgment. As explained below, I believe the last-served

defendant rule represents the more accurate and appropriate

5

In its review of the district court’s judgment, the separate opinion

addresses the preemption issue raised by UAW. We emphasize that this

preemption discussion is not binding on remand to the Circuit Court for

Cecil County, Maryland.

BARBOUR v. INTERNATIONAL UNION 33

reading of the terms of 28 U.S.C. § 1446(b).1 Therefore, I do

not join the majority’s adoption of the McKinney rule and

would hold that the UAW’s notice of removal was timely.

Nonetheless, because I do not find that complete preemption

applies to the Retirees’ claims, I would remand the case to the

state court because the district court lacked subject matter

jurisdiction. Accordingly, I concur only in the Court’s judg-

ment remanding this case to the Maryland state court.

I.

The threshold issue to consider is whether the notice of

removal was timely. See Fakouri v. Pizza Hut of Am., Inc.,

824 F.2d 470, 472 (6th Cir. 1987) ("‘In reviewing a denial of

a motion to remand a removed case, we look to whether the

case was properly removed to federal court in the first place.’"

(quoting Takeda v. Nw. Nat’l Life Ins. Co., 765 F.2d 815, 818

(9th Cir. 1985))); see also Ahearn v. Charter Twp. of Bloom-

field, 100 F.3d 451, 456-57 (6th Cir. 1996) (recognizing that

"[w]ithout proper removal, a state-court action does not

belong in federal court in the first place," finding removal was

improper, and declining to "express [an] opinion on the mer-

its"). If the notice was untimely, we need not consider the

UAW’s claim of complete preemption, as an invalid notice of

removal would require a remand to the Maryland state court.

On the other hand, if the UAW’s notice of removal was

timely, we must then consider whether the district court pos-

sessed subject matter jurisdiction over the Retirees’ claims

through complete preemption.

28 U.S.C. § 1446(b) provides:

1

For the reasons explained herein, the "last-served defendant rule" is

somewhat of a misnomer. A more accurate description of that rule would

be the "each-served defendant rule." Nonetheless, because the term "last-

served defendant rule" is used by the majority and our sister circuits, as

well as various treatises and commentators, I adhere to its usage for pur-

poses of this opinion concurring in the judgment.

34 BARBOUR v. INTERNATIONAL UNION

The notice of removal of a civil action or proceeding

shall be filed within thirty 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 thirty 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. . . .

(emphasis added.) As is self-evident, the statute speaks only

in terms of a singular defendant and does not explicitly

address the timeliness of removal in cases involving multiple

defendants, as in the case at bar. "All pertinent sections of the

removal statute contemplate cases with more than one defen-

dant, except for § 1446(b). This conspicuous omission has

created the most serious statutory construction problem when

removal is sought in multidefendant actions." Howard B.

Stravitz, Recocking the Removal Trigger, 53 S.C. L. Rev. 185,

200 (2002) (footnote omitted).

Application of § 1446(b) thus poses a conundrum when

multiple defendants are served at different times, particularly

when some named defendants have received no service of

process. Why Congress drafted the statute as it did is any-

one’s guess, but notwithstanding any Congressional impreci-

sion, courts adjudicating an issue of timely removal must

endeavor to apply a statutory framework which most closely

matches Congress’ intent. See United States v. Passaro, 577

F.3d 207, 213 (4th Cir. 2009) ("When interpreting any statute,

we must first and foremost strive to implement congressional

intent by examining the plain language of the statute."). As

the majority notes, in divining that intent, the courts of

appeals have set forth three distinct interpretations of

§ 1446(b)’s application to multiple defendants: (1) the "first-

served defendant rule," (2) the "McKinney rule," and (3) the

"last-served defendant rule." Before examining which rule

most closely follows Congress’ intent in enacting § 1446(b),

BARBOUR v. INTERNATIONAL UNION 35

a brief overview illustrating the principles of each rule and

how it would apply to the case at bar may be useful.

A. Overview

1. First-Served Defendant Rule

In Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986), the

Fifth Circuit observed that "[t]he general rule . . . is that ‘[i]f

the first served defendant abstains from seeking removal or

does not effect a timely removal, subsequently served defen-

dants cannot remove . . . due to the rule of unanimity among

defendants which is required for removal.’" 792 F.2d at 481

(quoting 1A Moore’s Federal Practice, ¶ 0.168 [3.5-5], 586-

87 (2d ed. 1985)). Two years later, in Getty Oil Corp. v.

Insurance Co. of North America, 841 F.2d 1254 (5th Cir.

1988), the Fifth Circuit expressly adopted what has become

known as the "first-served defendant" rule:

In cases involving multiple defendants, the thirty-

day period begins to run as soon as the first defen-

dant is served (provided the case is then removable).

It follows that since all served defendants must join

in the petition, and since the petition must be submit-

ted within thirty days of service on the first defen-

dant, all served defendants must join in the petition

no later than thirty days from the day on which the

first defendant was served.

841 F.2d at 1262-63 (internal citations omitted).

Under the first-served defendant rule, the first-served

defendant must file the notice of removal within thirty days

of the receipt of service of process. If the first-served defen-

dant fails to do so, no removal is permitted by any other

defendant, regardless of when or if other defendants were

served by the end of the initial defendant’s thirty-day period.

Removal in the case at bar was untimely under this rule, as

36 BARBOUR v. INTERNATIONAL UNION

the first-served defendant, i.e., the International Union, failed

to file a timely notice of removal. The first-served defendant

rule thus forecloses removal not only for the International

Union, but all other defendants as well, including Local 1212,

which never received service of process. Only the Fifth Cir-

cuit has adopted the first-served defendant rule.

2. McKinney Rule2

Six years after the Fifth Circuit adopted the first-served

defendant rule in Getty Oil, this Court tendered its opinion in

McKinney v. Board of Trustees, 955 F.2d 924 (4th Cir. 1992),

which considered a § 1446(b) removal issue on similar facts

to those in Getty Oil. The McKinney opinion observed that

later-served defendants could join an existing removal notice

within thirty days of service upon them, provided the first-

served defendant had timely filed a notice of removal.3 See id.

at 928.

The McKinney rule gives each defendant thirty days from

that defendant’s date of service of process to join a removal

petition, so long as the first-served defendant filed the notice

of removal within thirty days of its service. Under the facts of

2

The "McKinney rule" is derived from footnote three in McKinney v.

Board of Trustees of Maryland Community College, 955 F.2d 924 (4th

Cir. 1992), as more fully discussed in the majority opinion.

3

Although the district courts in this Circuit have considered the McKin-

ney rule to be dicta, some have followed it while others have not. Com-

pare Ratliff v. Workman, 274 F. Supp. 2d 783, 787 (S.D. W. Va. 2003)

(noting that the facts of McKinney "did not require the court to resolve . . .

whether an individual defendant may remove a case within thirty days of

service even when a previously served defendant has failed to remove in

a timely manner" and explaining that footnote three "is therefore consid-

ered dictum"), with Superior Painting & Contracting Co. v. Walton Tech.,

Inc., 207 F. Supp. 2d 391, 393 n.4 (D. Md. 2002) (noting that although the

McKinney Court’s "pronouncements on when first-served defendants must

file notices of removal has been termed dicta," "dictum from the court of

appeals should be considered presumptively correct by the district court[s]

within that circuit" (quotation omitted)).

BARBOUR v. INTERNATIONAL UNION 37

the present case, removal was untimely because the Interna-

tional Union, the first-served defendant, did not file a notice

of removal within thirty days of being served. The McKinney

rule requires this result notwithstanding the fact that Local

1183 filed a notice of removal within thirty days of its receipt

of process and Local 1212 was never served. No other circuit

has adopted the rule described in McKinney.

3. Last-Served Defendant Rule

Since Getty Oil and McKinney were decided, three other

courts of appeals have addressed § 1446(b) in the context of

multiple defendants. Each has adopted the last-served defen-

dant rule. See Bailey v. Janssen Pharmaceutica, Inc., 536

F.3d 1202, 1209 (11th Cir. 2008); Marano Enters. of Kan. v.

Z-Teca Rests., L.P., 254 F.3d 753, 757 (8th Cir. 2001); Brierly

v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th

Cir. 1999). This rule "permits each defendant, upon formal

service of process, thirty days to file a notice of removal pur-

suant to § 1446(b)." Bailey, 536 F.3d at 1209. "Earlier-served

defendants may choose to join in a later-served defendant’s

motion or not, therefore preserving the rule that a notice of

removal must have the unanimous consent of the defendants."

Id. at 1207. In adopting the last-served defendant rule, the

courts of appeals in Bailey and Marano relied heavily on the

Supreme Court’s decision in Murphy Brothers, Inc. v.

Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), which

came seven years after our decision in McKinney.

The last-served defendant rule gives each defendant thirty

days from its date of service of process to initiate removal by

filing a notice of removal. While all earlier-served defendants

must join in the removal, later-served defendants are not fore-

closed from initiating removal because earlier-served defen-

dants did not. Under the last-served defendant rule, the notice

of removal in this case was timely because all defendants

joined in the removal petition Local 1183 filed within thirty

days of its service. This is true notwithstanding the fact that

38 BARBOUR v. INTERNATIONAL UNION

an earlier-served defendant, the International Union, failed to

file a notice of removal within thirty days of its service of pro-

cess.

B. Determining Which Rule to Apply

Our task is to determine which rule most closely approxi-

mates the intent of Congress in cases involving multiple

defendants. As evidenced by the differing viewpoints of the

courts of appeals, as well as the divergence of opinion among

respected treatises on federal practice, logical arguments can

be made for each interpretation of § 1446(b).4

To select the rule most in line with congressional intent, we

look first and foremost to the wording of the statute. See U.S.

Army Engineer Ctr. v. FLRA, 762 F.2d 409, 413 (4th Cir.

1985) ("Our duty is to give effect to the intent of Congress,

which we must first seek in the plain language of the statute,

giving the words their ordinary meaning" (internal quotations

and citations omitted)). The majority opinion correctly states

that there is "no reason to depart from applying the plain lan-

guage of § 1446(b)." Majority Opinion at 20-21. However, I

must respectfully disagree that the majority identifies "plain

language" in the statute capable of supporting its adoption of

4

As the Sixth Circuit noted in Brierly, Wright & Miller supported the

last-served defendant rule, while Moore’s Federal Practice formerly

advanced the first-served defendant rule. See 184 F.3d at 532 n.2. The

most recent edition of Moore’s Federal Practice, however, recognizes that

in light of the Supreme Court’s decision in Murphy Brothers "it is likely

that the Court will decide that the removal right of later-served defendants

may not be compromised before they are served and that they ought to

have the opportunity to persuade the earlier-served defendants to join the

removal notice." 16 Moore’s Federal Practice § 107.30[3][a][iv][C] (3d

ed. 2010). In other words, "the [Supreme] Court has elevated the impor-

tance of proper service in the removal context. In doing so, it has implic-

itly rejected the policies that the removal statute be strictly construed and

that the choice of forum be settled as soon as possible." Id. Moore’s now

concludes that Murphy Brothers "will likely determine the result of this

debate in favor of the later-served defendant rule." Id.

BARBOUR v. INTERNATIONAL UNION 39

the McKinney rule. As seems obvious from the text of the

statute, § 1446(b) does not squarely address the issue pres-

ented for decision here. See Murphy Bros., 526 U.S. at 354

("[I]f in fact the [statute] had a plain meaning, the cases

would not be so hopelessly split over [its] proper interpreta-

tion." (quotation omitted)).

Section 1446(b) requires "[t]he notice of removal of a civil

action or proceeding . . . be filed within thirty days" of "the

defendant[’s]" receipt of the "initial pleading," or "within

thirty days after the service of summons." 28 U.S.C.

§ 1446(b) (emphasis added). However, what the statute does

not say is equally important. Section 1446(b) does not speak

to multiple defendants, nor does it reference joinder. Conse-

quently, the statute does not directly address the issues pre-

sented here, i.e., the timeliness of removal and joinder in

actions involving multiple defendants. We are thus necessar-

ily left to draw implications from § 1446(b)’s text.

That text is singular in nature and uses the definite article

to reference "the defendant" and "[t]he notice of removal." In

cases involving multiple defendants, I submit "the defendant"

must be read in its ordinary context to apply to each defen-

dant. If Congress had intended "the defendant" to exclude all

defendants after the first-served defendant, it could easily and

clearly have said so. Congress did not. Consequently, to give

meaning to the language Congress used, "the defendant"

should be taken to mean what it would in the ordinary course.

See Carbon Fuel Co. v. USX Corp., 100 F.3d 1124, 1133 (4th

Cir. 1996) ("Absent explicit legislative intent to the contrary,

the statute should be construed according to its plain and ordi-

nary meaning."). That is, "the defendant" is each defendant,

i.e., the defendant being served, and each such defendant is

given the statutory right to a prescribed thirty-day period in

which to file "[t]he notice of removal" attributable to that

defendant. See Bailey, 536 F.3d at 1207 ("[T]he statute, as

written, could reasonably be read to permit each defendant a

right to remove within thirty days of service on the individual

40 BARBOUR v. INTERNATIONAL UNION

defendant . . . ."); Brierly, 184 F.3d at 533 ("If Congress had

intended the 30-day removal period to commence upon ser-

vice of the first defendant, it could have easily so provided.");

C.L.B. v. Frye, 469 F. Supp. 2d 1115, 1119 (M.D. Fla. 2006)

("The most reasonable construction of this provision is that

each defendant — not just the first-served — has thirty days

in which to seek removal.").

Nothing in the language of § 1446(b) excludes any of "the

defendant[s]" from a right to file a removal notice. If any-

thing, giving effect to the ordinary meaning of the term "the

defendant" requires application of the last-served defendant

rule, as the other rules write out "the defendant[’s]" right to

file "[t]he notice of removal" unless that defendant is the first

to be served. There is no plain language in the statute that

says "the defendant" means only the first defendant, and thus

the right of "the defendant" to file "[t]he notice of removal"

is restricted to the first defendant served.

The construction given § 1446(b) in the majority opinion

may reflect valid policy considerations for Congress to evalu-

ate, but it is not rooted in the plain meaning of the statute.

Section 1446(b) simply states that "the defendant" has a right

to file "[t]he notice of removal" for a thirty-day period after

service of process. Unless words are added to the statute, the

natural construction of the terms of § 1446(b) is that the only

requirement for filing "the notice of removal" is that "the

defendant" file it within a given period after service.

As noted in McKinney, the first-served defendant rule

requires § 1446(b) to be read with "first-served" inserted

before "defendant." See 955 F.2d at 927; see also Bailey, 536

F.3d at 1207 ("[T]he first-served rule requires reading first-

served defendant into the statute . . . ."); Brierly, 184 F.3d at

533 ("[A]s a matter of statutory construction, holding that the

time for removal commences for all purposes upon service of

the first defendant would require us to insert ‘first’ before

‘defendant’ into the language of the statute."); C.L.B., 469 F.

BARBOUR v. INTERNATIONAL UNION 41

Supp. 2d at 1119 ("If Congress had intended that the thirty-

day removal period for all defendants to commence [sic] with

service upon the first defendant, it could have made that intent

clear. The courts that hold a later-served defendant is barred

from removal if thirty days have passed since the first defen-

dant was served can only reach that conclusion by reading the

words ‘first-served’ into the statute. Those courts take unjusti-

fied liberty with the plain meaning of the text." (quotations

and internal citations omitted)).

The McKinney rule and the majority’s "action require-

ment," however, similarly require the statute to be read with

"first-served" inserted before "defendant." See Marano, 254

F.3d at 755 n.4 (observing that the McKinney rule is "fully in

keeping with the first-served rule: it still requires that the first-

served defendant file a notice of removal within thirty days

and precludes a later-served defendant from instigating

removal if more than thirty days have passed since the first

defendant was served"). Indeed, the majority effectively alters

the statute to require not "the defendant" but "all earlier-

served defendants" to file not "the notice of removal" but the

functional equivalent of "notices of removal" within

§ 1446(b)’s thirty-day window. Otherwise, "the defendant"

would be each defendant served, as service of process acti-

vates each of "the defendant[’s]" statutory right to file "[t]he

notice of removal."

In contrast, the last-served defendant rule gives effect to

each defendant’s statutory right as "the defendant" to file

"[t]he notice of removal" and thus seems to most closely fol-

low the interpretive principle that removal statutes must be

strictly construed. "The canon of construction that a court

should strive to [narrowly] interpret a [removal] statute . . . is

useful in close cases, but it is ‘not a license for the judiciary

to rewrite language enacted by the legislature.’" Chapman v.

United States, 500 U.S. 453, 463 (1991) (quoting United

States v. Monsanto, 491 U.S. 600, 611 (1989)).

42 BARBOUR v. INTERNATIONAL UNION

Simply put, the language of § 1446(b) cannot support the

McKinney rule because that rule cannot operate without judi-

cial additions to the statute’s text not included by Congress.

It is well established, however, that courts must construe stat-

utes as written, not add words of their own choosing. See

United States v. Childress, 104 F.3d 47, 53 (4th Cir. 1996),

superseded by statute as recognized in United States v. Kelly,

510 F.3d 433, 441 n.8 (4th Cir. 2007) ("We must interpret

statutes as written, not as we may wish for them to be written.

Congress’ role is to enact statutes; the judiciary’s to interpret

those statues as written."). By adding words to the statute, the

majority opinion does not strictly construe § 1446(b).

While we construe removal statutes narrowly, we do

not rewrite them to add restrictions that cannot be

found in their language and that would run counter

to their purposes. See Tenn. Valley Auth. v. Whitman,

336 F.3d 1236, 1255 (11th Cir. 2003) ("[N]o canon

of statutory interpretation can trump the unambigu-

ous language of a statute."). As the Supreme Court

long ago admonished, "the Federal courts should not

sanction devices intended to prevent a removal to a

Federal court where one has that right, and should be

equally vigilant to protect the right to proceed in the

Federal court as to permit the state courts, in proper

cases, to retain their own jurisdiction." Wecker v.

Nat’l Enameling & Stamping Co., 204 U.S. 176, 186

(1907).

Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 766 (11th

Cir. 2010) (citation omitted).

What Congress has provided to "the defendant" in

§ 1446(b) is the right to file "[t]he notice of removal." The

majority opinion misconstrues the statute in circumscribing

that right by barring all defendants except the first-served

from exercising it. See Majority Opinion at 20 ("If the first-

served defendant decides not to remove, later-served defen-

BARBOUR v. INTERNATIONAL UNION 43

dants are not deprived of any rights under § 1446(b), because

§ 1446(b) does not prevent them from removing the case;

rather, it is the rule of unanimity that does."). In so doing, I

submit the majority conflates the right Congress granted "the

defendant" to file "[t]he notice of removal" with a defendant’s

right to join in a filed removal notice. But whether a defen-

dant joins in the removal is a wholly different matter than

whether a defendant initiates removal by filing the removal

notice.

Contrary to the majority’s apparent misapprehension, filing

a notice of removal is not the same as joining in that removal.5

Removal is controlled by § 1446(b)’s thirty-day requirement,

but joinder is not. "[T]he defendant" who fails to file "[t]he

notice of removal" within thirty days of service has lost that

which the statute gave him — the right to file the removal

notice. That right is gone forever. No matter what that tardy

defendant may wish to do, it cannot file "[t]he notice of

removal." However, the loss of that right, the only right

extended by the plain terms of § 1446(b), has no effect on the

defendant’s right to join a notice of removal timely filed by

another defendant.

The majority’s statement that "the Last-Served Defendant

Rule allows all of the defendants, except the last-served, to

both ignore § 1446(b)’s . . . thirty-day action requirement and

act in an untimely fashion," Majority Opinion at 22 n.4, is not

accurate. Once "the defendant" lets its thirty-day period

expire, its statutory right to file "[t]he notice of removal"

ceases to exist. However, nothing in § 1446(b) forecloses that

defendant’s separate right to joinder. Section 1446(b)’s terms

are quite specific; they address the timely filing of a notice of

5

As the Ninth Circuit explained in Proctor v. Vishay Intertechnology

Inc., 584 F.3d 1208, 1224-25 (9th Cir. 2009), the courts of appeals have

established different requirements for joining a timely notice of removal.

None of them, however, mandate that each defendant file its own removal

notice.

44 BARBOUR v. INTERNATIONAL UNION

removal, not timely joinder and certainly not timely "action"

in some generic and undefined sense. In other words, the stat-

ute does not address the time period in which remaining

defendants must join in the removal initiated when "the defen-

dant" files "[t]he notice of removal."

Of course, for removal to take place, all defendants must

give their assent to transferring the case to federal court. Con-

gress was undoubtedly aware of this longstanding "rule of

unanimity" when it drafted § 1446(b). See Fletcher v. Hamlet,

116 U.S. 408, 410 (1886) ("There can be no removal by the

defendants unless they all join . . . ."). It is thus reasonable to

conclude that Congress intended to give the defendants who

did not file the removal notice time in which to join in the

removal. See Brierly, 184 F.3d at 533 ("If Congress had

intended the 30-day removal period to commence upon ser-

vice of the first defendant, it could have easily so provided.").

It is the McKinney rule, not the rule of unanimity, which

mandates that all earlier-served defendants file a timely notice

of removal. The rule of unanimity simply requires that all

defendants join in the removal at some point. Section 1446(b),

however, is silent as to when that joinder must occur. More

importantly, nothing in § 1446(b) merges a defendant’s right

to file a notice of removal with a right to joinder. Only by

conflating the notice of removal with joinder can the majority

validate the McKinney rule. Section 1446(b), however, does

not strip an earlier-served defendant who failed to file a notice

of removal of its separate right to joinder.

I am thus left to conclude that the majority’s view that the

plain language of § 1446(b) supports the McKinney rule is

inaccurate. The majority can only arrive at that result by

adding words to the statute and by conflating a defendant’s

right to file "[t]he notice of removal" with its right to join a

timely removal notice. I submit the plain terms of § 1446(b)

do not support either construct.

BARBOUR v. INTERNATIONAL UNION 45

This conclusion takes on greater force in view of the

Supreme Court’s decision in Murphy Brothers and the reason-

ing of our sister circuits in addressing the issue presented in

the case at bar. Unlike the Getty Oil and McKinney courts, we

have the advantage of the Supreme Court’s guidance in Mur-

phy Brothers. Like the Eighth and Eleventh Circuits, I agree

that Murphy Brothers lends credible and persuasive support to

the last-served defendant rule as the more appropriate reading

of § 1446(b).

The Supreme Court in Murphy Brothers was asked to

determine "whether the named defendant must be officially

summoned to appear in the action before the time to remove

[under 28 U.S.C. § 1446(b)] begins to run." 526 U.S. at 347.

In requiring that formal service occur before the commence-

ment of the 30-day removal period, the Supreme Court reaf-

firmed the "bedrock principle" that "[a]n individual or entity

named as a defendant is not obliged to engage in litigation

unless notified of the action, and brought under a court’s

authority, by formal process." Id.

The facts of the case at bar illustrate the conflict between

Murphy Brothers and the first-served defendant or McKinney

rules. Here, the International Union was served on March 20,

2008 and Local 1183 was served nine days later on March 29,

2008. Despite the fact that Local 1212 was never served, it

joined in the notice of removal filed on April 28, 2008 (39

days after service on the International Union and 30 days after

service on Local 1183).

"Contrary to Murphy Brothers, the first-served defendant

rule would [have] obligate[d] [Local 1212] to seek removal

prior to [its] receipt of formal process bringing [it] under the

court’s jurisdiction." Bailey, 536 F.3d at 1208. Under either

the first-served defendant rule or the McKinney rule, Local

1212’s right to seek removal as "the defendant" would have

been eliminated by the International Union’s failure to file a

notice of removal within 30 days of being served, even

46 BARBOUR v. INTERNATIONAL UNION

though Local 1212 was not yet within the district court’s

jurisdiction. But see Murphy Bros., 526 U.S. at 356 (refusing

"to render removal the sole instance in which one’s proce-

dural rights slip away before service of a summons, i.e.,

before one is subject to any court’s authority"). Such preju-

dice to Local 1212 would violate the spirit, if not the letter,

of the "bedrock principle" that "a defendant is not obliged to

engage in litigation unless notified of the action, and brought

under a court’s authority, by formal process." Id. at 347. This

principle would apply as well to Local 1183, if the failure of

another party, the International Union, were to be construed

as waiving Local 1183’s own right to seek removal under

§ 1446(b).

Murphy Brothers made clear that "[i]n the absence of ser-

vice of process (or waiver of service by the defendant), a

court ordinarily may not exercise power over a party the com-

plaint names as defendant." Id. at 350. Despite the Supreme

Court’s admonition that "one becomes a party officially, and

is required to take action in that capacity, only upon service

of a summons," id. (emphasis added), the majority adheres to

the McKinney rule. In practice, this position will require an

unserved defendant, who may or may not be aware of the law-

suit, to urge a first-served defendant, of whom it may have no

knowledge, to file the notice of removal. But see id. at 352

(recognizing that Congress modified § 1446(b) in 1949 to

address its concern that the prior version of the statute could

"place[] the defendant in the position of having to take steps

to remove a suit to Federal court before he knows what the

suit is about" (quotation omitted)). The Supreme Court’s deci-

sion in Murphy Brothers does not counsel such a result.

As the Eighth Circuit explained in Marano, although not

directly on point, "the legal landscape in this area has been

clarified, and perhaps the definitive answer portended, by the

Supreme Court’s decision in Murphy Bro[thers]." 254 F.3d at

756. The Eighth Circuit concluded

BARBOUR v. INTERNATIONAL UNION 47

that, if faced with the issue before us today, the

[Supreme] Court would allow each defendant thirty

days after receiving service within which to file a

notice of removal, regardless of when — or if —

previously served defendants had filed such notices.

See 16 James Wm. Moore et al., Moore’s Federal

Practice § 107.30[3][a][i], at 107-163 (3d ed. 2000)

("[I]t is likely that the Court may decide that the later

served defendants may not have their removal right

compromised before they are served, and that they

ought to have the opportunity to persuade the earlier

served defendants to join the notice of removal.

Thus, the fairness approach may well, and should,

supercede [sic] the unanimity rule.").

Id. at 756–57 (footnote omitted); see also Shadie v. Aventis

Pasteur, Inc., 254 F. Supp. 2d 509, 515 (M.D. Pa. 2003)

("This ‘later-served defendant’ rule appears to be a necessary

corollary to the Supreme Court’s recent decision in Murphy

Brothers . . . . "); Orlick v. J.D. Carton & Son, Inc., 144 F.

Supp. 2d 337, 343 (D.N.J. 2001) ("In light of the Supreme

Court’s holding in Murphy Brothers . . . , it is counter-

intuitive to maintain a ‘first-served defendant’ rule when the

Supreme Court would not — consistent with Murphy Broth-

ers — begin to run a later-served defendant’s time to seek

removal until that defendant received proper service of pro-

cess.")

Agreeing with the Eighth Circuit’s reasoning, the Eleventh

Circuit stated:

Perhaps prior to Murphy Brothers and its holding

that notice is insufficient to trigger § 1446(b)’s time

window, the issue of which rule to endorse would be

a closer call than it is now. The tide of recent deci-

sions by the courts of appeals . . . recognize that

equity favors permitting each defendant thirty days

in which to seek removal under the statute. As the

48 BARBOUR v. INTERNATIONAL UNION

Eighth Circuit observed, the last-served defendant

rule is consistent with Murphy Brothers, . . . [which]

signals a slight departure from the weight courts

might ordinarily put on strict construction of the

removal statute. It appears to us to be contrary to the

Supreme Court’s holding in Murphy Brothers, as

well as the interests of equity, to permit a first-served

defendant to, in effect, bind later-served defendants

to a state court forum when those defendants could

have sought removal had they been more promptly

served by the plaintiff.

Bailey, 536 F.3d at 1208 (footnote omitted).

In McKinney, we observed that equity did not favor the

first-served defendant rule and stated that "a better term for

what the Getty Oil rule could lead to is ‘inequity.’" 955 F.2d

at 927. For all intents and purposes, this criticism of the first-

served defendant rule also applies to the McKinney rule. Both

rules foreclose removal for all later-served defendants if the

first or earlier-served defendants fail to act, even if the later-

served defendants have not received service of process. The

Sixth, Eighth, and Eleventh Circuits each discussed this factor

in adopting the last-served defendant rule. See Bailey, 536

F.3d at 1206 ("[W]e are convinced that both common sense

and considerations of equity favor the last-served defendant

rule."); Marano, 254 F.3d at 755 ("The [Fifth Circuit in Getty

Oil] did not consider . . . the ‘hardships’ to a defendant when

the first-served defendant for whatever reason does not file a

notice of removal within thirty days of service.") (emphasis

omitted); Brierly, 184 F.3d at 533 ("[A]s a matter of fairness

to later-served defendants, we hold that a later-served defen-

dant has 30 days from the date of service to remove a case to

federal district court, with the consent of the remaining defen-

dants." (footnote omitted)).

One commentator has explained the inequity thrust upon

later-served defendants as follows:

BARBOUR v. INTERNATIONAL UNION 49

[N]either § 1446(a) nor § 1446(b) contemplates a

scenario in which defendants are served as much as

thirty days apart, or in which an unsophisticated

defendant is served first and a more sophisticated

defendant is served later. In these instances, the

second-served defendant should be able to timely

remove and persuade the first-served defendant to

join the removal. Otherwise, the first-served defen-

dant abridges the second-served defendant’s proce-

dural right to a federal forum. If the first-served

defendant makes a conscious choice not to remove,

the second-served defendant has to accept that

choice. But the second-served defendant should have

a reasonable opportunity to consult with the first-

served defendant regarding possible removal. Con-

sultation is practically impossible if service on the

second defendant occurs near the end of or after the

first defendant’s thirty-day removal period has

expired.

Stravitz, supra, at 202-203.

While these equitable considerations are a valid policy rea-

son for Congress to choose the last-served defendant rule as

the best way to implement the purpose of § 1446(b), I am

constrained to reject the majority’s adoption of the McKinney

rule for the textual reasons set forth above. The plain lan-

guage of § 1446(b) simply does not support construing "the

defendant[’s]" statutory right of removal in keeping with

either the first-served or McKinney rules. Only by adding

words so that "the defendant[’s]" right to file "[t]he notice of

removal" is limited to the "first" defendant served can either

the first-served or McKinney rules be found to fit the statute.

This is beyond our power as a court to do. See, e.g., 62 Cases,

More or Less, Each Containing Six Jars of Jam v. United

States, 340 U.S. 593, 596 (1951) ("[O]ur problem is to con-

strue what Congress has written. After all, Congress expresses

its purpose by words. It is for us to ascertain — neither to add

50 BARBOUR v. INTERNATIONAL UNION

nor to subtract, neither to delete nor to distort."); McLean v.

United States, 566 F.3d 391, 407 (4th Cir. 2009) ("[W]e sim-

ply are not at liberty to add . . . limiting words to the statute.")

(Shedd, J., concurring in part and dissenting in part).

By contrast, an ordinary reading of § 1446(b)’s references

to "the defendant" being entitled to file "[t]he notice of

removal" is that each such defendant in a multi-defendant

case has that right. The last-served defendant rule seems the

truest to the text of § 1446(b) in upholding that procedural

right and thus following the strict construction principle. The

aptness of the last-served defendant rule is further strength-

ened by the Supreme Court’s decision in Murphy Brothers,

which preserved a defendant’s removal rights until that defen-

dant is brought within the court’s jurisdiction by service of

process. Under the McKinney rule, an unserved defendant like

Local 1212 is not accorded the right Murphy Brothers appears

to give a defendant not to be dispossessed of the removal

privilege before becoming a party to the case.

For all of these reasons, I would join the Sixth, Eighth, and

Eleventh Circuits and adopt the last-served defendant rule.

Accordingly, I would find the joint notice of removal by the

UAW was timely filed and would affirm that part of the dis-

trict court’s judgment denying the Retirees’ motion to remand

under § 1446(b).

II. Complete Preemption

Having determined that the notice of removal was timely

filed, I next consider whether the district court correctly con-

cluded that the Retirees’ claims were cognizable only in fed-

eral court.

A. Overview

1. Procedural History

Once this case was removed to federal court, the UAW

filed a motion to dismiss under Rule 12(b)(6) based on the

BARBOUR v. INTERNATIONAL UNION 51

assertion that the Retirees’ claims were barred by the applica-

ble statute of limitations under federal labor law. See 29

U.S.C. § 160(b). The Retirees responded by filing a motion to

remand the case to state court, arguing, inter alia, that there

was no basis for federal jurisdiction. The district court ulti-

mately held that the Retirees had "artfully" attempted to

"‘plead around’ the pre-emptive force of federal labor law"

and that their claims were "completely pre-empted by the fed-

eral duty of fair representation," which is derived from section

9(a) of the NLRA. Id. at 127. Accordingly, the district court

granted the UAW’s motion to dismiss based on the federal

statute of limitations.

2. Federal Subject Matter Jurisdiction

Removal to federal court of a proceeding filed in state court

usually occurs in one of three circumstances: (1) "if the par-

ties are diverse and meet the statutory requirements for diver-

sity jurisdiction" as set forth in 28 U.S.C. §§ 1332, 1441(b);

(2) "if the face of the complaint raises a federal question;" or

(3) "if the subject matter of a putative state law claim has

been totally subsumed by federal law — such that state law

cannot even treat on the subject matter." Lontz v. Tharp, 413

F.3d 435, 439-40 (4th Cir. 2005). The UAW has never con-

tended that removal could be founded upon diversity jurisdic-

tion or that a federal claim is presented on the face of the

Retirees’ complaint. Therefore, we need only consider

whether the doctrine of complete preemption provides a basis

for subject matter jurisdiction in federal court.

If the district court correctly concluded that complete pre-

emption applies, then subject matter jurisdiction exists as to

this case. But if the district court erred in that regard, it lacked

subject matter jurisdiction and had no authority to rule on the

UAW’s Rule 12(b)(6) motion. Consistent with the stricture

that complete preemption must be narrowly construed, I con-

clude that the Retirees’ claims are not completely preempted

52 BARBOUR v. INTERNATIONAL UNION

by federal law and consequently that the district court lacked

subject matter jurisdiction to decide this case.

We review questions of subject matter jurisdiction

de novo, "including those relating to the propriety of

removal." Mayes v. Rapoport, 198 F.3d 457, 460

(4th Cir. 1999). The burden of demonstrating juris-

diction resides with "the party seeking removal."

Mulcahey v. Columbia Organic Chems. Co., 29 F.3d

148, 151 (4th Cir. 1994). We are obliged to construe

removal jurisdiction strictly because of the "signifi-

cant federalism concerns" implicated. Id. Therefore,

"[i]f federal jurisdiction is doubtful, a remand [to

state court] is necessary." Id.

Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815–16 (4th Cir.

2004) (en banc).

"Under what has become known as the well-pleaded com-

plaint rule, § 1331 federal question jurisdiction is limited to

actions in which the plaintiff’s well-pleaded complaint raises

an issue of federal law . . . ." In re Blackwater Sec. Consult-

ing, LLC, 460 F.3d 576, 584 (4th Cir. 2006). "The rule makes

the plaintiff the master of the claim; he or she may avoid fed-

eral jurisdiction by exclusive reliance on state law." Caterpil-

lar Inc. v. Williams, 482 U.S. 386, 392 (1987); see also

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003) ("As

a general rule, absent diversity jurisdiction, a case will not be

removable if the complaint does not affirmatively allege a

federal claim."). "The doctrine of complete preemption pro-

vides a corollary to the well-pleaded complaint rule. This doc-

trine recognizes that some federal laws evince such a strong

federal interest that, when they apply to the facts underpin-

ning the plaintiff’s state-law claim, they convert that claim

into one arising under federal law." In re Blackwater, 460

F.3d at 584. Our decision in Lontz, which states the applicable

principles clearly and concisely, provides a roadmap for

determining the issue of complete preemption.

BARBOUR v. INTERNATIONAL UNION 53

We have noted our obligation "to construe

removal jurisdiction strictly because of the ‘signifi-

cant federalism concerns’ implicated" by it. Mary-

land Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d

255, 260 (4th Cir. 2005) (quoting Mulcahey, 29 F.3d

at 151). "Federalism concerns strongly counsel

against imputing to Congress an intent to displace a

whole panoply of state law . . . absent some clearly

expressed direction." Custer v. Sweeney, 89 F.3d

1156, 1167 (4th Cir. 1996) (internal quotes omitted).

Consistent with these principles, we have recognized

that state law complaints usually must stay in state

court when they assert what appear to be state law

claims. See, e.g., Harless v. CSX Hotels, Inc., 389

F.3d 444, 450 (4th Cir. 2004); King, 337 F.3d at 424;

Darcangelo v. Verizon Communications, Inc., 292

F.3d 181, 186 (4th Cir. 2002); Cook v. Georgetown

Steel Corp., 770 F.2d 1272, 1274 (4th Cir. 1985).

The presumption, in other words, is against finding

complete preemption. Custer, 89 F.3d at 1167.

But that presumption is rebuttable, because federal

law occasionally "displace[s] entirely any state cause

of action." Franchise Tax Board, 463 U.S. at 23.

When it does, federal law then "provide[s] the exclu-

sive cause of action for such claims," and therefore

"there is . . . no such thing as a state-law claim" in

the regulated area. Beneficial, 539 U.S. at 11. The

doctrine of complete preemption thus prevents plain-

tiffs from "defeat[ing] removal by omitting to plead

necessary federal questions." Franchise Tax Board,

463 U.S. at 22. It thereby ensures compliance with

congressional intent that federal courts be available

to resolve certain claims which are peculiarly

national in scope. Defendants’ burden, then, is to

demonstrate that a federal statute indisputably dis-

places any state cause of action over a given subject

matter.

54 BARBOUR v. INTERNATIONAL UNION

Lontz, 413 F.3d at 440–41 (alterations in original).

B. Complete Preemption is Both Disfavored and Rare

When considering whether Congress intended for a puta-

tive state law claim to be totally subsumed by federal law,

"we begin with the presumption that state courts enjoy con-

current jurisdiction." Gulf Offshore Co. v. Mobil Oil Corp.,

453 U.S. 473, 478 (1981). The UAW thus bears the heavy

burden of proving that § 9(a) of the NLRA "indisputably dis-

places" the claims set forth in the Retirees’ complaint, strip-

ping state courts of jurisdiction over the claims. Lontz, 415

F.3d at 440. "The presumption . . . is against finding complete

preemption." Id. (citing Custer v. Sweeney, 89 F.3d 1156,

1167 (4th Cir. 1996)). That presumption, however, is rebutta-

ble. Occasionally, federal law "displace[s] entirely any state

cause of action." Franchise Tax Board v. Constr. Laborers

Vacation Trust, 463 U.S. 1, 23 (1983)). The UAW’s burden,

then, "is to demonstrate that a federal statute indisputably dis-

places any state cause of action over a given subject matter."

Lontz, 413 F.3d at 440.

In my view, this case turns on the critical distinction

between ordinary and complete preemption. Lontz provides

helpful guidance for distinguishing between these two con-

cepts:

In assessing whether defendants have carried their

burden, we may not conflate "complete preemption"

with "conflict" or "ordinary" preemption. While

these two concepts are linguistically related, they are

not as close kin jurisprudentially as their names sug-

gest. Complete preemption is a "jurisdictional doc-

trine," while ordinary preemption simply declares

the primacy of federal law, regardless of the forum

or the claim. Sonoco Prods., 338 F.3d at 370-71.

Ordinary preemption has been categorized as a fed-

eral "defense to the allegations." Caterpillar, 482

BARBOUR v. INTERNATIONAL UNION 55

U.S. at 392. And as a mere defense, the "preemptive

effect of a federal statute . . . will not provide a basis

for removal." Beneficial, 539 U.S. at 6 (internal cita-

tions omitted). See also Rivet, 522 U.S. at 475-76;

Caterpillar, 482 U.S. at 392-93; Metro. Life Ins. Co.

v. Taylor, 481 U.S. 58, 66 (1987) ("even an ‘obvi-

ous’ pre-emption defense does not, in most cases,

create removal jurisdiction"); Franchise Tax Board,

463 U.S. at 14. Even if preemption forms the very

core of the litigation, it is insufficient for removal.

Caterpillar, 482 U.S. at 393.

Lontz, 413 F.3d at 440–41 (alterations in original).

Ordinary preemption is thus merely a defense, which "de-

clares the primacy of federal law, regardless of the forum or

the claim." Id. (citing Sonoco Prods. Co. v. Physicians Health

Plan, Inc., 338 F.3d 366, 370-71 (4th Cir. 2003)). It does not

"‘provide a basis for removal.’" Id. (quoting Beneficial, 539

U.S. at 6); see also In re Blackwater, 460 F.3d at 584

("[A]ctions in which defendants merely claim a substantive

federal defense to a state-law claim do not raise a federal

question.") (citing Louisville & Nashville R.R. Co. v. Mottley,

211 U.S. 149, 152 (1908)).

In contrast, complete preemption necessitates removal

because it means "there is ‘no such thing’ as the state action."

Lontz, 413 F.3d at 441 (quoting Beneficial, 539 U.S. at 11).

For complete preemption to apply, it is insufficient for a

defendant to show the plaintiff’s state law claim could have

been made as a federal law claim. Otherwise, the well-

pleaded complaint rule, which recognizes the plaintiff as the

master of his claim, would be turned on its head and removal

jurisdiction would expand exponentially. See Caterpillar Inc.,

482 U.S. at 392 (1987) (recognizing the well-pleaded com-

plaint rule "makes the plaintiff the master of the claim; he or

she may avoid federal jurisdiction by exclusive reliance on

state law"); see also Lontz, 413 F.3d at 441 (citing Metro. Life

56 BARBOUR v. INTERNATIONAL UNION

Ins. v. Taylor, 481 U.S. 58, 65 (1987)) (recognizing that com-

plete preemption "undermines the plaintiff’s traditional ability

to plead under the law of his choosing," providing another

reason for courts to be "reluctant" to find complete preemp-

tion). Instead, a removing defendant must show not only that

the defendant’s state law claim is cognizable as a federal

claim, but also that Congress clearly intended the federal

claim to "‘provide the exclusive cause of action’ for claims of

overwhelming national interest." Lontz, 413 F.3d at 441

(quoting Beneficial, 539 U.S. at 11).

Thus, for good reason, "[c]omplete preemption is rare."

Moore’s Federal Practice, § 107.14[4][b][iii] (3d ed. 2010). In

fact, the Supreme Court has found complete preemption in

only three cases. See Beneficial, 539 U.S. at 10-11 (National

Bank Act); Metro. Life Ins., 481 U.S. at 66-67 (ERISA

§ 502(a)); Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of

Machinists, 390 U.S. 557, 560 (1968) (Labor Management

Relations Act ("LMRA") § 301). That is because the Supreme

Court has articulated "exacting standards" for establishing

complete preemption — chief among them is the burden of

demonstrating congressional intent, clear from the text of the

statute, that state law should be entirely displaced. Lontz, 413

F.3d at 441 (citing Metro. Life, 481 U.S. at 66-67).

C. Complete Preemption Does Not Apply

The UAW contends that because all of the Retirees’ claims

necessarily implicate the duty of fair representation, which

federal courts have read into § 9(a) of the NLRA,6 their claims

6

Section 9(a) of the NLRA reads as follows:

Representatives designated or selected for the purposes of collec-

tive bargaining by the majority of the employees in a unit appro-

priate for such purposes, shall be the exclusive representatives of

all the employees in such unit for the purposes of collective bar-

gaining in respect to rates of pay, wages, hours of employment

or other conditions of employment: Provided, That any individ-

BARBOUR v. INTERNATIONAL UNION 57

are completely preempted by federal law.7 Even if we assume

some of the Retirees’ claims could be recast as falling within

the duty of fair representation under § 9(a) of the NLRA, I

believe the district court and the UAW have conflated com-

plete preemption and ordinary preemption. Although the duty

of fair representation may provide a federal defense to the

Retirees’ claims, it is a defense of ordinary preemption and

not a case where Congress has clearly and unequivocally "dis-

placed any state cause of action."

To begin, finding complete preemption here would fly in

the face of the well-established rule that a plaintiff is the mas-

ter of the complaint. See Beneficial Nat’l Bank, 539 U.S. at

12. It is important to keep in context the claims actually pled

by the Retirees, which are traditional state-law causes of

action for violation of a fiduciary duty arising from their

membership in an organization. These state common law "du-

ties of care, fidelity, and loyalty" are the basis, historically

and today, of many state causes of action and do not inher-

ently represent an "overwhelming national interest."

Significantly, the Retirees plead no claim against Chrysler,

their employer. Neither do they plead a breach of the collec-

tive bargaining agreement. Moreover, there is no allegation by

the Retirees which makes any term in a collective bargaining

ual employee or a group of employees shall have the right at any

time to present grievances to their employer and to have such

grievances adjusted, without the intervention of the bargaining

representative, as long as the adjustment is not inconsistent with

the terms of a collective-bargaining contract or agreement then in

effect: Provided further, That the bargaining representative has

been given opportunity to be present at such adjustment.

29 U.S.C. § 159(a).

7

I agree with the panel in Lontz that "[i]f this distinction amounted to

deciding which court had the honor of dismissing the case, it might appear

to be a dispute over trifles," but I, too, "think more is at stake." 413 F.3d

at 442.

58 BARBOUR v. INTERNATIONAL UNION

agreement relevant to their state law claims. These are signifi-

cant considerations the Supreme Court has recognized in

§ 301 cases, such as Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399, 413 (1988): "[A]pplication of state law is

pre-empted by § 301 of the Labor Management Relations Act

of 1947 only if such application requires the interpretation of

a collective-bargaining agreement." The UAW’s attempt to

unilaterally recast the Retirees’ claims as only being cogniza-

ble under the federal duty of fair representation ignores the

well-pleaded complaint rule and the power it gives plaintiffs

to shape their claims.8

In addition, the UAW fails to satisfy the touchstone of

complete preemption — namely, congressional intent. Con-

gress must have intended for the federal statute to entirely dis-

place state law in order for complete preemption to adhere.

See Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 231 (4th

Cir. 1993). The UAW directs us to no statutory language in

§ 9(a) of the NLRA, nor to any legislative history, showing a

clear intent by Congress to treat all state law claims relating

to all fiduciary duties owed to union members by virtue of

their union membership as exclusively federal claims under

§ 9(a). On its face, § 9(a) simply does not reveal an intent to

always foreclose state law claims for breach of a fiduciary

duty arising from union membership.

The UAW’s failure to identify any congressional intent for

complete preemption is not surprising, given that the duty of

fair representation is a judicially-created duty. That is to say,

one would not expect to find a clear statement of congressio-

8

While it is an open question whether some of the Retirees’ claims

invoke a state-law duty, as pled, or whether they should be construed as

having a nexus to the UAW’s duty of fair representation, other Retiree

claims appear more attenuated from a federal cause of action. For exam-

ple, the Retirees’ claim that the UAW, when asked, owed its members a

duty "to warn them of the financial implications of retiring," J.A. at 55,

would seem weighted toward the pled state-law fiduciary duties of "care,

fidelity, and loyalty" and not toward a federal duty of fair representation.

BARBOUR v. INTERNATIONAL UNION 59

nal intent regarding a duty created by the judiciary. See Int’l

Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 47 (1979) ("The

right to bring unfair representation actions is judicially

‘implied from the statute and the policy which it has adopted

. . . .’" (quoting Steele v. Louisville & N. R. Co., 323 U.S. 192,

204 (1944))); Wrobbel v. Asplundh Constr. Corp., 549 F.

Supp. 2d 868, 875 (E.D. Mich. 2008) ("[T]he fact that the fed-

eral duty of fair representation is a judicial creation tends to

undermine the argument that Congress intended § 9(a) to sup-

plant state law with a federal cause of action."). And there can

be no doubt that the Supreme Court has labeled the duty of

fair representation an implied duty. Marquez v. Screen Actors

Guild, Inc., 525 U.S. 33, 48 (1998) (emphasis added) ("[T]he

union’s duty of fair representation is implied from its status as

the exclusive bargaining representative of the bargaining unit

workers.").

Absent clear preemptive intent, the UAW thus asks us to

find that Congress implicitly intended to preempt the Retir-

ees’ state law claims based on a duty that is itself implied

from the purported preemptory statute. This is one implication

too many. A finding of complete preemption so as to establish

exclusive federal subject matter jurisdiction in these circum-

stances would undermine established concepts of federalism,

not to mention contradict the clear precedent of this Court that

"strongly counsel[s] against imputing to Congress an intent to

displace a whole panoply of state law . . . absent some clearly

expressed direction." Custer, 89 F.3d at 1167 (quotation omit-

ted); see also Lontz, 413 F.3d at 440.

In the absence of a statutory basis for complete preemption

in this case, the UAW and amicus rely on opinions from the

Fifth and First Circuits to support their complete preemption

argument. These cases are distinguishable and based on con-

clusory reasoning that conflates complete and ordinary pre-

emption.

In Richardson v. United Steelworkers, 864 F.2d 1162 (5th

Cir. 1989), employees sued their union in Texas state court

60 BARBOUR v. INTERNATIONAL UNION

for failing to warn them that their employer had a right to

replace them if they went on strike. 864 F.2d at 1164. The

only basis pled for the employees’ cause of action was that the

union "acted as bargaining agent for [them]" and, as such,

"had a duty to advise them of measures which their employer

could, and in reasonable probability would, take" in the event

they rejected their employer’s final offer and went on strike.

Id. (emphasis omitted).

Initially, the union removed the case to federal court on the

basis that jurisdiction existed pursuant to § 301 of the LMRA,

29 U.S.C. § 185 et seq. With leave of court, the union subse-

quently filed an amended removal petition asserting jurisdic-

tion based on the fact that the plaintiffs’ claims were actually

"for breach of its duty of fair representation under the

NLRA." Id. The employees filed a motion to remand the case,

which the district court denied. Id. at 1164-65.

On appeal, the Fifth Circuit focused on the plaintiffs’ sole

allegation that "the Union had a duty to advise them of [their

employer’s] right to replace them if they went on strike," and

"that this duty arose from the Union’s status as their collec-

tive bargaining agent." Id. at 1165 (emphasis added). The

court specifically noted that the employees "assert[ed] no

other source of this duty." Id. The Richardson plaintiffs thus

pled no cause of action based on their union membership or

any other state-law duty separate from those imposed by the

collective bargaining agreement. Stating that "[t]he Union’s

right to act as plaintiffs’ bargaining agent is conferred by the

NLRA," the Fifth Circuit held "that the duties corresponding

to this right conferred by federal labor law [were] defined

solely by federal labor law" and thus completely preempted

state law. Id. "As a result of this complete preemption of state

law, . . . the district court had removal jurisdiction over the[]

action[]." Id.

Critical to the court’s holding in Richardson was the lim-

ited duty the Union was said to have breached. As the plain-

BARBOUR v. INTERNATIONAL UNION 61

tiffs only pled a duty flowing from the collective bargaining

agreement, the Fifth Circuit distinguished between the case

before it, i.e., one based on the collective bargaining agree-

ment, and one pled solely under state law:

[T]his case . . . does not present the question of

whether the Union was subject to an independent

state-law duty of care . . . arising simply from the

relationship of a union to its members. Plaintiffs

here allege a duty arising from the collective bar-

gaining agent’s relationship under the NLRA with

the bargaining unit members, who may or may not

be union members. Indeed, plaintiffs’ original peti-

tion does not even allege that plaintiffs are or were

members of the Union. Nor does this case involve

state law actions that are not preempted because the

activity complained of touches interests deeply

rooted in local feeling or is only a peripheral con-

cern of the NLRA.

Id. at 1167 (quotations and internal citations omitted) (empha-

ses added).

In stark contrast to the factual basis in Richardson, the

Retirees’ complaint states that "[a]s a result of their union

membership, the UAW owed [them] duties of loyalty, fidelity

and full disclosure of all material facts." J.A. at 26. Unlike the

plaintiffs in Richardson, who "did not allege any breach of a

state tort duty that exists independently of the NLRA-

established collective bargaining relationship, which is the

central concern of the NLRA," 864 F.2d at 1167, the Retirees

have alleged "‘an independent state-law duty of care . . . aris-

ing simply from the relationship of a union to its members.’"

See id. (quoting Int’l Bd. of Elec. Workers v. Hechler, 481

U.S. 851, 862 n.5 (1987)).

Putting aside these substantial factual and pleading distinc-

tions between Richardson and the case at bar, we observe the

62 BARBOUR v. INTERNATIONAL UNION

Richardson Court’s precedential basis for complete preemp-

tion does not support its conclusion. In finding complete pre-

emption as a jurisdictional matter, the Fifth Circuit stated

Under Vaca, the NLRA duty of fair representation,

for the enforcement of which a federal (and state)

court action is authorized, completely preempts state

law because of the congressional intent that federal

law, developed to further the goals of the NLRA,

entirely govern the duties which an NLRA collective

bargaining representative owes, by virtue of its posi-

tion as such, to the workers it represents in that

capacity.

Id. at 1169.

The Richardson Court’s reliance on Vaca v. Sipes, 386 U.S.

171 (1967) is misplaced. Vaca was not a case of complete

preemption concerning subject matter jurisdiction in federal

court, but instead addressed whether ordinary preemption

required the application of federal law in state court — the

precise question the UAW could raise in the Maryland state

court upon remand. Thus, Vaca is an unsupportive and inap-

posite basis upon which to embrace § 9(a) complete preemp-

tion. The Richardson Court’s conclusion is particularly

perplexing seeing as it recognized that Vaca "held that th[e]

federal duty of fair representation preempted state substantive

law . . . though it did not preclude state court jurisdiction."

864 F.2d at 1166 (emphasis added).

In the other case relied upon by the UAW, BIW Deceived

v. Local S6, Industrial Union of Marine and Shipbuilding

Workers of America, 132 F.3d 824 (1st Cir. 1997), tradesmen

went to Maine to interview for employment with Bath Iron

Works. 132 F.3d at 827. Union representatives participated in

the interviews pursuant to a collective bargaining agreement

and, according to the tradesmen, assured them of continued

employment due to Bath’s great need for their skills. Id.

BARBOUR v. INTERNATIONAL UNION 63

Despite these assurances, Bath laid off the tradesmen several

months after they began their employment. Id. The workers

consequently filed suit against the union in state court, alleg-

ing, among other things, claims for negligence and fraudulent

misrepresentation. Id.

The union removed the case to federal court on the basis

that the plaintiffs’ claims were barred by § 9(a) of the NLRA

and/or § 301 of the LMRA. The First Circuit determined

§ 301 foreclosed most of the employees’ claims, but also

alternatively opined

that preemption [based on the duty of fair representa-

tion] operates in much the same fashion as [LMRA]

section 301 preemption. . . . [W]e hold that a district

court possesses federal question jurisdiction when a

complaint, though garbed in state-law raiment, suffi-

ciently asserts a claim implicating the duty of fair

representation.

Id. at 831–32 (internal citations omitted). The BIW court then

applied the "artful pleading doctrine" to "conclude without

serious question that the instant complaint reveals a colorable

question of federal law and that, therefore, the district court

did not err when it denied the motion to remand." Id. at 833.

I find the First Circuit’s conclusions unpersuasive for several

reasons.

First, in support of its holding, the First Circuit relied on

Richardson, which, for the reasons set forth above, does not

set out a well-reasoned basis upon which to find complete

preemption. Second, mindful of our obligation to "strictly

construe removal jurisdiction," Mulcahey v. Columbia

Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994), I am

not convinced that the requisite "manifestation of congressio-

nal will" can be found with respect to the § 9(a) duty of fair

representation to create complete preemption, as opposed to

a federal defense of ordinary preemption. Lastly, I note the

64 BARBOUR v. INTERNATIONAL UNION

First Circuit found, without citation to the text of the statute

or any of its legislative history, an implication of complete

preemption for an implied duty of fair representation. See

BWI Deceived, 132 F.3d at 831–33. This simply does not

adhere to Lontz’s requirement that "congressional intent that

state law be entirely displaced must be clear in the text of the

statute." 413 F.3d at 441. In short, I believe the Fifth and First

Circuits conflated complete and ordinary preemption.

Furthermore, I find the reliance by the UAW and amicus on

United Steelworkers of America v. Rawson, 495 U.S. 362

(1990) puzzling. This is so first and foremost because Rawson

dealt with the application of ordinary preemption in state

court and did not involve the issue of jurisdiction in a federal

court, much less complete preemption as a basis for federal

subject matter jurisdiction. Rawson involved a choice of law

issue, i.e., whether federal labor law either under § 301 or the

duty of fair representation, as opposed to state tort law,

applied in a proceeding against a union in Idaho state court.

See 495 U.S. at 369-72.

Under the facts presented in Rawson, the Supreme Court

determined that federal law applied to the pending state law

claims in state court and that although the plaintiffs could not

bring suit under § 301, their claim that the union "committed

fraud on the membership in violation of state law . . . might

implicate the duty of fair representation." Id. at 376. Rawson

thus involved the application of ordinary preemption as a

defense in state court to a state law claim, not complete pre-

emption.

Accordingly, Rawson is good authority for the result that

should be reached here; that whatever the merits of the Retir-

ees’ claims, the UAW’s defense is properly adjudicated in

state court as a defense of ordinary preemption. See Vaca, 386

U.S. at 186, 188 (holding that employees who have failed to

exhaust contractual remedies may sue their employer if the

union "breached its duty of fair representation in its handling

BARBOUR v. INTERNATIONAL UNION 65

of [a] grievance" and noting that "the Missouri courts had

jurisdiction in this case"); see also El Paso Natural Gas Co.

v. Neztsosie, 526 U.S. 473, 485 n.7 (1999) ("[S]tate courts[]

can and do decide questions of federal law, and there is no

reason to think that questions of federal preemption are any

different."); Franchise Tax Bd. v. Constr. Laborers Vacation

Trust, 463 U.S. 1, 12 n.12 (1983) ("If the state courts reject

a claim of federal preemption, that decision may ultimately be

reviewed on appeal by [the Supreme] Court."). The UAW

may have a valid preemption defense, as in Rawson, but that

defense is not a basis upon which subject matter jurisdiction

in a federal court may rest.9 See Vaden v. Discover Bank, 129

S. Ct. 1262, 1272 (2009) (noting that "[f]ederal jurisdiction

cannot be predicated on an actual or anticipated defense").

In short, the UAW asks us to find exclusive federal subject

matter jurisdiction in the face of presumptions in favor of con-

current jurisdiction and against finding complete preemption

despite the fact that such a determination lacks a clear founda-

tion in an act of Congress or the precedent of either the

Supreme Court or this Court. To do so would eviscerate basic

principles of federalism and recast the most basic of constitu-

tional precepts — subject matter jurisdiction — by judicial

fiat.

9

The UAW and amicus also contend that a failure to find complete pre-

emption in this case is "wholly inconsistent with the clearly established

federal labor law principle that a union owes the same duty of fair repre-

sentation to all members of the bargaining unit regardless of their union

affiliation." Petition for Rehearing and Rehearing En Banc at 7 (quotation

and emphasis omitted); see also Brief of the Am. Fed’n of Labor and Con-

gress of Indus. Orgs. at 9. While the foregoing quote is an accurate recita-

tion of the principle described, that principle is not relevant to this case.

If the Retirees’ claims are barred by the duty of fair representation, then

that determination by the state court would give union members no advan-

tage over nonunion members — there would be no basis for a claim by

either. Conversely, if some or all of the Retirees’ claims are determined

by the state court not to involve the duty of fair representation, then a non-

union member could not have made a § 9(a) claim in the first place.

66 BARBOUR v. INTERNATIONAL UNION

Specifically, the position advocated by the UAW would

deprive plaintiffs of the most basic right to plead their claims

for relief from injury as they deem appropriate. While that

right is circumscribed in a few narrowly defined instances, the

denial of an injured party’s right to seek relief for state-

authorized claims in the proper state court is a foundational

element of our constitutional system. The UAW’s position in

this case would wholly undercut that foundation and move far

beyond any basis in existing law.

The Supreme Court, "reluctant to infer pre-emption," Bldg.

& Constr. Trades Council v. Associated Builders & Contrac-

tors of Mass./R.I., Inc., 507 U.S. 218, 224 (1993), has been

steadfast in its support of the face of the complaint rule. See,

e.g., Beneficial Nat’l Bank, 539 U.S. at 12. In the absence of

a clear direction from Congress, which there plainly is not in

§ 9(a) of the NLRA, or a similarly clear direction from the

Supreme Court, there is no basis upon which to conclude that

§ 9(a) of the NLRA "wholly displaces" every state law cause

of action in circumstances like those currently before us. Id.

at 8.

Thus, I would conclude the doctrine of complete preemp-

tion does not apply here. Consequently, there was no basis for

removal to the district court under 28 U.S.C. § 1441 and the

district court lacked subject matter jurisdiction over the Retir-

ees’ complaint.10, 11

10

In the event that we found, as I have, that the duty of fair representa-

tion in § 9(a) does not completely preempt the Retirees’ state law claims,

the UAW argued in the alternative that the claims are completely pre-

empted by § 301 of the LMRA. Preemption under § 301 can only occur

when claims are "founded directly on rights created by collective-

bargaining agreements" or are "substantially dependent on analysis of a

collective-bargaining agreement." Caterpillar Inc., 482 U.S. at 394 (quota-

tion omitted).

The UAW bases its argument on the following allegations made by two

of the retiree plaintiffs: that they "contacted their Union representatives

BARBOUR v. INTERNATIONAL UNION 67

III.

While I concur in the judgment of the Court, I respectfully

disagree with the basis for that judgment as set out in the

majority opinion. I would adopt the last-served defendant rule

as the law of this Circuit and affirm that part of the district

court’s judgment holding that the notice of removal was

timely under § 1446(b). I would further hold that the district

court was without subject matter jurisdiction over the Retir-

ees’ claims because the doctrine of complete preemption does

not apply in this case. Accordingly, I would reverse the judg-

ment of the district court and remand this case to the district

court with instructions to remand the case to the Maryland

state court on the basis of the lack of complete preemption.

and asked to grieve or appeal the UAW’s false statements to them regard-

ing the offer of a retirement package and retroactive nature of any package

subsequently offered. Both . . . were informed by Union officers that no

grievance and/or appeal could be filed regarding this matter." J.A. at 51-

52. These allegations, it is argued, "requires interpretation of the CBA."

Appellee’s Br. at 39. I disagree.

As the Retirees point out, their complaint does not charge the UAW

with negligence by denying access to a grievance procedure or with negli-

gent representation during a grievance proceeding. These allegations,

which appear in the "fact" section of the complaint, merely explain what

inquiries some of the plaintiffs made in response to learning they were

ineligible for the incentive packages. Unlike the situation in BIW

Deceived, in which the union stood "accused of violating a duty of care

that flowed to it pursuant to the [collective bargaining agreement]," 132

F.3d at 833, this record does not indicate any need to analyze the terms

of a collective bargaining agreement in connection with the Retirees’

claims.

In sum, the Retirees’ state law claims for negligence and negligent mis-

representation are not preempted by § 301.

11

I express no view as to the application of ordinary preemption as a

defense which the UAW may raise in the state court. I also "express no

view as to whether such claims on the merits are preempted by federal

law, as this is a question for state courts to resolve." Lontz, 413 F.3d at

438.

68 BARBOUR v. INTERNATIONAL UNION

Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer,

and Judge Duncan join in this opinion concurring in the judg-

ment.