Petition for Writ of Certiorari — Hobbs v. United States (No. 06-783)

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Supreme Court U.S

FILED

06-783 913.6 9006

In the

Supreme Court of the Anited States

LAWRENCE HOBBS, individually, e7 a/.,

Petitioners,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

CHARLES M. BREWER

Counsel of Record

Joun B. BREWER

Dane L. Woop

Davip L. ABNEY

Law Orrices OF CHARLES M Brewer, Lip.

$500 NortH 24™ SrrReer

PHOENIX, AZ 85016

(602) 381-8787

(602) 381-1152 fax

Counsel for Petitioners

Becker Gallagher - Cincinnan, OH + Washington, D-C. - 800.890.5001

QUESTION PRESENTED

When more than one defendant has been sued in a state-

court civil case, federal courts are sharply divided on how to

calculate the time for removal of the case from state court to

federal court. It appears that most federal courts calculate the

removal time from the date when the first defendant was

served, under the “first-served defendant” rule. But many

federal courts calculate the removal time from the date when

the last defendant was served, under the “last-served

defendant” rule.

The United States Supreme Court has never told lower

federal courts what rule to follow, despite a decades-long split

among federal trial and appellate courts.

Thus, the “question presented” is this:

Were the United States District Court for the District of

Arizona and the United States Court of Appeals for the Ninth

Circuit correct when they adopted the apparent minority

position and held that the “last-served defendant” rule must be

applied to calculate the time limit for removing a state-court

civil case to federal district court?

PARTIES TO THE PROCEEDING

The parties to the proceeding before this Court are:

The plaintiffs in the state court case: Lawrence Hobbs,

individually; Lawrence and Gloria Hobbs, husband and wife;

and Tyler Hobbs, Jennifer Portillo, and Christine Hobbs,

their children.

The respondent federal courts: The United States District

Court of the District of Arizona and the United States Court

of Appeals for the Ninth Circuit.

The real parties in interest, which are the original named

defendants in the state court case: PacifiCorp, an Oregon

corporation; and S.D. Myers, Inc., a foreign corporation.

iit

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................-.

PARTIES TO THE PROCEEDING ............. i

TABLE OF AUTHORITIES .................. vi

PETITION FOR WRIT OF CERTIORARI ......... I

OPINIONS AND ORDERS BELOW ............ 1

ON ee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Il. THE “FIRST-SERVED DEFENDANT” RULE IS

THE FAIREST AND MOST PRACTICAL RULE

FU SEREe AE BOP PE Es 6 a bw wee 8

Il. FEDERAL COURTS ARE DEEPLY-DIVIDED ON

WHAT RULE TO FOLLOW

iil. THE INTERLOCUTORY ROAD PETITIONERS

TRAVELLED TO GET HERE - AND WHY THEY

SHOULD STAY

CAPRA US oe ca Ree Rees 18

APPENDIX

Appendix A: 9/18/06 Circuit Court Order ....... la

Appendix B: 7/25/06 Circuit Court Order ....... 3a

Appendix C: 2/24/06 District Court Order ....... Sa

Appendix D: 1/17/06 District Court Order ...... 10a

Appendix E: 8/1/06 Plaintiffs-Petitioners’ Petition for

rr ar a rare a rere 19a

Appendix F: 5/2/06 Petition for Writ of Mandamus 33a

Appendix G:- 1/20/06 Motion ‘for Certification

mene FE gn ee ec cea es 53a

Appendix H: 1/27/06 Defendant Pacificorp’s

Response in Opposition to Motion for Certification of

MURTRRCUIOTY AMON. ne ce ree eee sees 57a

Appendix I: 2/6/06 Reply in Support of Motion for

Certification of Interlocutory Appeal ......... 6la

Appendix J: 6/23/05 Notice of Removal ....... 67a

Appendix K: 7/15/05 Motion for Remand to Superior

IE eee ata ote beg ecg artic ann ews Ee eo Se 70a

Appendix L: 8/1/05 Pacificorp’s Response in

Opposition to Motion to Remand to Superior Court 84a

Appendix M: 8/2/05 Defendant $.D. Myers, Inc.

Joinder in Pacificorp’s Response in Opposition to

Motion to Remand to Superior Court ......... 98a

Appendix N: 8/8/05 Plaintiff's Reply in Support of

Motion for Remand to Superior Court ........ 100a

TABLE OF AUTHORITIES

Page

CASES

Abrego Abrego v. The Dow Chemical Co..,

443 F.36 G70 Oe CR. DOOR 6. cc cece eee: wy)

ARCO Environmental Remediation, L.L.C. v. Department

of Health and Environmental Quality of Montana,

ice ee Be Me Le AP rer 16

Auchinleck v. Town of LaGrange,

167 F. Supp. 2d 1066 (E.D. Wis. 2001) ........ 14

Bauman y. U.S. Dist. Ct., N. Dist. of Cal.,

re oe ee GC LOTT i ck eee eee X

Bewley v. Cigna Fin. Advisors,

1997 WL 601426 (N.D. Cal. Sept. 23, 1997) ..... 13

Biggs Corp. v. Wilen,

97 F. Supp. 2d 1040 (D. Nev. 2000) ....... 13, 14

Brierly v. Alusuisse Flexible Packaging, Inc.,

Ce ee et CGC. BFP ee eS ee se ee 14

Brown v. Demco, Inc.,

(pe wo fy oe Ae Se. ne 12, 13

Bush v. Cheaptickets, Inc.,

a ee ED sep oe nek ow 8 oe 1]

Cantrell v. Great Republic Ins. Co.,

S73 F.28 12469 Com Cor. 1909) . . ce ee eds 11

Vil

Cellport Systems, Inc. v. Peiker Acustic GMBH & Co. KG,

335 F. Supp. 2d 1131 (D. Colo. 2004) ......... 14

Chicago, Rock Island & Pacific Railway Co. v. Martin,

5 Shas See CRD 6d a kee Niel ialek 40 dle 9,11

City of Clarksdale v. BellSouth Telecommunications, Inc.,

i gk a | 16

Collings v. E-Z Serve Convenience Stores, Inc.,

936 F.Supp. 892 (N.D. Fla. 1996) ............ 15

Duncan v. Stuetzle, 76 F.3d 1480 (9th Cir. 1996) .... 12

Embury v. King, 361 F.3d 562 (9th Cir. 2004) ...... 1]

Ford v. New United Motors Mfg..,

$57 F. Supp. 707 (N.D. Cal. 1994) ........... 13

Gaus v. Miles, Inc., 980 F.2d 564 (9th Cir. 1992) .... 9

Griffith v. Am. Home Prods.,

85 F. Supp.2d 995 (E.D. Wash..2000) ......... 13

Harmelin v. Michigan, 501 U.S. 957 (1991)

Hartford Steam Boiler Inspection and Ins. Co. v. Riviera

Elec. LLC,

2006 WL 1046962 (D. Colo. 2006) ........... 15

Hill v. Blind Industries & Services of Md..,

Ere Ooo Tow Cr a, Bee cis boc ee chews 12

Hom vy. Service Merchandise Co., Inc.,

T2i F. Sapp. 1343 (A.D. Cal. 1990) ... 2. «ese 10

Vill

Innovacom ..... v. Haynes,

1998 Wi. 1.4933 (N.D. Cal. March 17, 1998) .... 13

In re Agent Orange Product Liability Litigation,

635 F.2d 987 (2nd Cir. 1980),

cert. denied, 454 U.S. 1128 (1981) ........... 17

Ireland v. Checkerboard Square, LLC,

2005 WL 43995 (Magistrate D. Or. Jan. 10, 2005),

rpt. & rec. adopted by

2005 WL 372204 (D. Ore. Feb. 15, 2005) ....... 13

Kuhn y. Brunswick Corp.,

871 F. Supp. 1444 (N.D. Ga. 1994) ........... 15

Lee v. American National Insurance Co.,

260 F.3d 997 (9th Cir. 2001),

cent. dented, 535. U.S. F265 (O02) oc cc ccs 16

Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P..,

254-36 T53 CO CM: FOE ve iwi ee eee ees 14

McAnally Ent., Inc. v. McAnally,

107 F. Sapp. 270 1223 (C.D. Cal. MAM)... sss: 13

McKinney v. Board of Trustees,

SS Fb Fee Ge, TP ok es eee eee es 14

Morgan y. Asbestos Defs. (BHC),

2003 WL 945987 (N.D. Cal. Feb. 28, 2003) ..... 13

Orlick v. J.D. Carton & Son, Inc.,

144 F. Supp. 26 537 G.ND. MOT) ww we ee ee es 15

Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998) .. 9

Phoenix Container, L.P. v. Sokoloff,

83 F. Supp. 2d 928 (N.D. Ill. 2000) ........ 13, 14

Piacente v. State University of New York at Buffalo,

362 F. Supp. 2d 383 (W.D.N.Y. 2004) ......... 15

Pic-Mount Corp. v. Stoffel Seais Corp..,

70s F. supp. 1113 @. Nev. 1989) ............ 13

Prize Frize, Inc. v. Matrix (U.S.) Inc.,

167 F.3d 1261 (9th Cir. 1999). .............. y)

Ratliff v. Workman,

274 F. Supp. 2d 783 (S.D.W. Va. 2003) ........ 15

Regents of University of California v. Bakke,

Ce Ss | ra 17

Samura v. Kaiser Found. Health Plan,

vee. meee. wre ctw. Cl. I9GY) 2... ww es 13

Shadie v. Aventis Pasteur, Inc.,

254 F. Supp. 2d 509 (M.D. Pa. 2003) ......... 15

Sheeran v. General Electric Co.,

593 F.2d 93 (9th Cir. 1979),

cert. denied, 444 U.S. 868 (1979) ............ 16

Smola v. Trumbull Ins. Co..,

ait. oe. 2a 1232 (@. Colo. 2004) ......... 15

Sullivan y. First Affiliated Sec., Inc.,

813 F.2d 1368 (9th Cir. 1987),

cert. denied, 484 U.S. 850 (1987) ............ 16

Teitelbaum y. Soloski,

843 F. Supp. 614 (C.D. Cal. 1994) ..........., 13 .

Trans. Indem. Co. v. Fin. Trust Co..,

Soe F. Sepp. 405. (C.D. Cal. 1972) ... 22... 11, 13

United Comp. Sys., Inc. v. AT & T Corp.,

a90 6.50 tr0 CC. BOGE) ovens es 10, 11

Watson y. Philip Morris Companies, Inc.,

GOP FOE Bae CR. BON hie ee ec beeen es 16

STATUTES AND RULES

ee as way os oro eee Co ee ee 1

ae ee Ek os eee cee 1.2.9

Be eas EE oo bo da kee ee ba eee: passim

ee as Ee ee eke beh cede e 3,9

ee as EE oe is aed eee 3

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a Writ of Certiorari to

review certain orders of the United States District Court for

the District of Arizona and of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS AND ORDERS BELOW

There are four related opinions and orders that Petitioners

ask this Court to review. In reverse chronological listing,

they are: (1) September 18, 2006 Order of the Ninth Circuit

denying the petition for rehearing en banc; (2) July 26, 2006

Order of the Ninth Circuit denying the petition for writ of

mandamus; (3) February 24, 2006 Order of the Untied States

District Court for the District of Arizona denying the motion

for certification for interlocutory appeal; and (4) January 17,

2006 Order of the United States District Court of the District

of Arizona denying the motion to remand.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a) and Rule 13(a), Rules of the Supreme Court,

because the ultimate Order for which review is sought was

filed by the United States Court of Appeals for the Ninth

Circuit on September 18, 2006.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S.C. § 1441(a): Except as otherwise expressly

provided by Act of Congress, any civil action brought in a

State court of which the district courts of the United States

have original jurisdiction, may be removed by the defendant

or the defendants, to the district court of the United States for

the district and division embracing the place where such

action is pending. For purposes of removal under this chapter,

the citizenship of defendants sued under fictitious names shall

be disregarded.

28 U.S.C. § 1441(a): Any civil action of which the

district courts have original jurisdiction founded ona claim or

right arising under the Constitution, treaties or laws of the

United States shall be removable without regard to the

citizenship or residence of the parties. Any other such action

shall be removable only if none of the parties in interest

properly joined and served as defendants is a citizen of the

State in which such action is brought.

28 U.S.C. § 1446(a): A defendant or defendants desiring

to remove any civil action or criminal prosecution from a

State court shall file in the district court of the United States

for the district and division within which such action is

pending a notice of removal signed pursuant to Rule 11 of the

Federal Rules of Civil Procedure and containing a short and

plain statement of the grounds for removal, together with a

copy of all process, pleadings, and orders served upon such

defendant or defendants in such action.

28 U.S.C. § 1446(b): 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.

If the case stated by the initial pleading is not removable,

a notice of removal may be filed within thirty days after

receipt by the defendant, through service or otherwise, of a

copy of an amended pleading, motion, order or other paper

from which it may first be ascertained that the case is one

which is or has become removable, except that a case may not

be removed on the basis of jurisdiction conferred by section

1332 of this title more than | year after commencement of the

action.

28 U.S.C. § 1447(c): A motion to remand the case on the

basis of any defect other than lack of subject matter

jurisdiction must be made within 30 days after the filing of the

notice of removal under section 1446(a). If at any time before

final judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded. An order

remanding the case may require payment of just costs and any

actual expenses, including attorney fees, incurred as a result

of the removal. A certified copy of the order of remand shall

be mailed by the clerk to the clerk of the State court. The

State court may thereupon proceed with such case.

28 U.S.C. § 1651: The Supreme Court and all courts

established by Act of Congress may: issue all writs necessary

Or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.

STATEMENT OF THE CASE

The start of the case: This lawsuit began with a fire and

explosion. On May 8, 2004, Petitioner Lawrence Hobbs was

a technician at the Cholla Power Plant, an electric generating

facility in Joseph City, Navajo County, Arizona.’ Hobbs was

walking near a large step-up transformer (Unit 4) when it

caught fire and exploded, severely injuring him. Real Parties

in Interest (“Defendants”) owned, operated, and/or worked

on Unit 4.

Petitioners sue Defendants in Arizona state court: On

May 5, 2005, Petitioners sued Defendants in Maricopa

County Superior Court, Phoenix, Arizona. Petitioners served

the summons and complaint on the two proper named

Defendants as follows: (a) S.D. Myers, Inc. was served on

May 16, 2005; (b) PacifiCorp was served on May 24, 2005.”

There was no federal question in the complaint or otherwise.

Notice of removal and motion to remand: On June 23,

2005, PacifiCorp filed a notice of removal to federal district

court. This was more than 30 days after S.D. Myers was

served, but within 30 days after service on PacifiCorp. On

July 15, 2005, Plaintiffs filed their “Motion for Remand to

Superior Court.”

The district court’s January 17, 2006 Order: Judge

Bolton denied remand, noting that there was a decided split of

authority on what rule to follow, since the removal statute did

not specifically address whether to follow the “first-served”

or the “last-served” rule.’ As Judge Bolton held: “The first-

served defendant rule, which has been followed by the Fifth

' Joseph City is a small town about 78 miles east of Flagstaff,

Arizona.

” Defendant PacifiCorp LLC was served on May 13, 2005, but it

turned out that this unrelated entity was not involved in any of the

events of this case, and thus was not a proper Defendant.

> Jan. 17, 2006 Order at 3, lines 3-5.

Circuit and a large number of district courts, states that the

thirty-day removal deadline begins to run for all defendants as

soon as any defendant is served with process. If the first-

served defendant fails to remove the case within the thirty-day

period, the right to removal will have been waived and the

defendant will be foreclosed from joining any future removal

attempts. ”*

On the “last-served” defendant rule, Judge Bolton wrote:

“The later-served defendant rule, which has been adopted by

the Sixth and the Eight Circuits and many district courts,

States that each defendant has thirty days from the time of

service to convince all earlier-served defendants to join a

petition for removal.”’ Judge Bolton followed the “last-

served” defendant rule, and denied the remand motion.

Motion for certification of the interlocutory appeal:

Plaintiffs filed a motion for certification of interlocutory

appeal” on January 20, 2006.

In her February 24, 2006 Order, Judge Bolton agreed

that: “Circuits and district courts are deeply divided, and the

Ninth Circuit (as well as several other circuits) have not yet

provided an answer to this frequently recurring issue. Part of

the reason for the courts’ silence could be the issue’s elusive

nature on appeal. Parties (or appellate courts) appear

unwilling to resolve the issue on interlocutory appeal, and it

is seldom pursued following final judgment.”° While

* Jan. 17, 2006 Order at 3, lines 12-14, 17-19 (citations omitted).

> Jan. 17, 2006 Order at 3, lines 12-14, 17-19 (citations omitted).

omitted).

declining to certify the appeal, Judge Bolton strongly

encouraged Plaintiffs to pursue this matter further:

I would love it if the Ninth Circuit would address

the issue so that we would know, once and for all.

. . I would love it if they would. It didn’t seem to

be one of the standards upon which I was supposed to

certify an interlocutory appeal.

So we didn’t, but if you want to pursue it, I would

certainly encourage you to do so, because the Ninth

Circuit, I think, can apply whatever standard they

think is appropriate even it it’s a little different from

the one we’re required to follow.

But I don’t see any reason, while you’re discussing all

of that and determining whether you want to do that,

to hold up the proceedings with this case, because

even if the Ninth Circuit takes a look at it, what is

done between now and when they may decide whether

to take to case or not will be useful whether you’re

litigating here or back in state court.’

The three-judge panel denied the mandamus writ: On

May 6, 2006, Petitioners filed a petition for writ of

mandamus, which a three-judge panel of the United States

Court of Appeals for the Ninth Circuit denied on July 25,

2006 (Exh. 4), in the following terms: “Petitioners have not

demonstrated that this case warrants the intervention of this

court by means of the extraordinary remedy of mandamus.”

’ Reporter’s Transcript of Proceedings at 5-6 (emphasis added)

(Feb. 27, 2006).

The Ninth Circuit denied a petition for rehearing en

banc: On August 2, 2006, Petitioners filed a Petition for

Rehearing en banc with the Ninth Circuit. In an Order dated

September 18, 2006, the Ninth Circuit denied the Petition for

Rehearing en banc, ordering that “No further filings shall be

accepted in this closed case.” Petitioners then filed the

present petition for writ of certiorari.

REASONS FOR GRANTING THE PETITION

There are compelling reasons to grant this Petition. Most

important, this Court has never decided what rule to apply

when calculating the removal time for a state-court case

involving multiple defendants which are not all served with

civil process on the same date. It’s a simple problem that

repeatedly arises and that can now be resolved. District

courts in the Ninth Circuit - and federal appellate and trial

courts across the nation - are split on what to do in such

cases. Most appear to follow the “first-served defendant”

rule. But many follow the “last-served defendant” rule.

This is a clear issue with an “A” or “B” answer. It is not

an issue where it is sometimes “A” and sometimes “B,”

sometimes a combination of “A” and “B,” and sometimes

neither “A” nor “B.” It is one or the other — but not both.

The United States Supreme Court has never told federal

courts whether they should follow the “first-served

defendant” rule or the “last-served defendant” rule. Doing

both is impossible. Petitioners seek adoption of the “first-

served defendant” rule, but, whether or not that rule is

adopted, lower court confusion on the subject is endemic and

should be ended. Petitioners thus ask this Court to state

which rule the lower federal courts must follow.

The decision of the trial court to adopt the “last-served”

defendant rule, and the Ninth Circuit’s refusal to offer any

guidance on what rule district courts in the Ninth Circuit

should follow, were an abuse of discretion. This issue is so

basic and important to the proper administration of justice -

but so elusive and apt to evade review — that this Court should

accept jurisdiction over the matter and announce a national

rule for all federal courts to follow.

After all, once a case ends, a civil plaintiff's right to have

the case litigated in state court is lost forever. This

exasperating problem often arises and has deeply divided

federal courts across the nation. But it persistently evades

review. If this Court accepts jurisdiction over this vexing

problem, it can be resolved once and for all. In addition, if

this Court adopts the “first-served defendant” rule, Petitioners

will be able to resume litigating this case in state

court—where they filed it and where it should have remained.

I. THE “FIRST-SERVED DEFENDANT” RULE IS

THE FAIREST AND MOST PRACTICAL RULE

FOR THIS COURT TO ADOPT.

The “first-served defendant” rule is fairest and most

practical because: (1) it best fits with the removal and remand

process; (2) it resolves the proper forum for the case faster

and with greater certainty; and (3) it best protects a plaintiff's

choice concerning where the case should be litigated.

The removal process operates under strict guidelines: A

defendant may only remove a civil state-court case to federal

court if there is diversity or federal question jurisdiction. 28

U.S.C. § 1441(a) & (b). But the defendant must comply with

the removal standards of 28 U.S.C. § 1446(b), the first

paragraph of which requires a defendant to file a notice of

removal within thirty 30 days after receiving notice of a

complaint revealing diversity or a substantial federal question.

When there are multiple defendants, all defendants must join

in the removal petition. The United States Supreme Court

adopted this “unanimity rule” over a century ago.® Now, all

federal courts follow the unanimity rule in regular removal

cases.”

Under the “unanimity rule,” any one defendant may

prevent a case from being removed. Ifa defendant’s removal

notice fails to meet the timeliness or unanimity requirements

of 28 U.S.C. § 1446(b), the district court may remand the

action upon a plaintiff's timely motion.'° Courts strictly

construe removal statutes against removal jurisdiction. Any

doubt is resolved in favor of remanding the case.'' Indeed,

“strict construction is especially warranted in diversity cases,

where concerns of comity mandate that state courts be

8 See, e.g., Chicago, Rock Island & Pacific Railway Co. v.

Martin, 178 U.S. 245, 248 (1900).

” See, e.g., Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261,

1266 (9th Cir. 1999); Parrino v. FHP, Inc., 146 F.3d 699, 703

(9th Cir. 1998). Congress recently abrogated the “unanimity rule”

for certain class action lawsuits. See Abrego Abrego v. The Dow

Chemical Co. , 443 F.3d 676 (9th Cir. 2006). But that change does

not affect the present case, which ts not a class action.

'© See 28 U.S.C. § 1447(c) (“A motion to remand the case on any

basis other than subject matter jurisdiction must be made within 30

days after the filing of the notice of removal under section

1446(a).”).

'' Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (“We

strictly construe the removal statute against removal jurisdiction.

Federal jurisdiction must be rejected if there is any doubt as to the

right of removal in the first instance.”) (citations omitted).

allowed to decide state cases unless the removal action falls

squarely within the bounds Congress has created.”'”

The majority of courts have apparently adopted the “first-

served defendant” rule and hold that the thirty-day removal

period begins to run for all defendants on the date that the

first defendant receives service of the state-court summons

and complaint.’ Courts have adopted the majority “first-

served defendant” rule for three related reasons:

e The “first-served defendant” rule inevitably flows

from the “unanimity rule;”

e Forum selection should be resolved as early as

possible; and

¢ Removal statutes must be construed narrowly.

First, under the unanimity rule, all defendants must join

a removal petition even though they have not received a copy

'2 Hom v. Service Merchandise Co., Inc., 727 F. Supp. 1343,

1345 (N.D. Cal. 1990) (citation and internal quote marks omitted).

'’ United Computer Systems, Inc. v. AT & T Corp. 298 F.3d 756,

762 (9th Cir. 2002) (The “first-served” defendant rule “has been

apparently adopted by the majority of courts that have addressed

this issue.”).

of the complaint."* In fact, the failure of a defendant to move

for removal within the 30-day period is regarded as an

irrevocable choice not to remove. “To hold otherwise would

have the effect of extending the thirty-day limitation as

applied to that defendant for an indefinite period.”'’ Looked

at from a different perspective, a defendant’s failure to

remove a case within thirty days operates as a waiver of the

right to remove. Logically then, that defendant must be

barred from consenting to a later-served defendant’s removal

notice, or there would be no unanimity .'°

Second, courts applying the majority rule have

emphasized the necessity that the forum selection should be

settled as early as possible. Indeed, Congress has specified

that, if removal does not occur within one year after

commencement of the action in state court, it cannot be

removed ever.'’ This is an implicit repudiation of the logic of

'4 See Chicago, Rock Island & Pacific Railway Co. v. Martin, 178

U.S. 245, 248 (1900); Embury v. King, 361 F.3d 562, 563 n.1

((9th Cir. 2004) (consent of all defendants required for removal).

The only exception to the unanimity rule may be for parties who are

nominal, unknown, or fraudulently joined. United Computer

Systems, Inc. v. AT & T Corp., 298 F.3d 756, 762-63 (9th Cir.

2002). That exception does not apply here.

'? Transport Indemnity Co. v. Financial Trust Co. , 339 F. Supp.

405, 409 (C.D. Cal. 1972).

'© Cantrell v. Great Republic Ins. Co. , 873 F.2d 1249, 1254 (9th

Cir. 1989) (Failure to remove within 30 days results in a waiver of

the right to remove.).

'7 28 U.S.C. § 1446(b). See also Bush v. Cheaptickets, Inc. , 425

F.3d 683, 688-89 (9th 2005) (discussing the one-year removal

the “last-served defendant” rule, which would sanction

removal even if a defendant were served over a year after

commencement of the state-court action.

Third, the rule requiring narrow construction of removal

statutes supports the majority rule.'* Indeed, the “defendant’s

right to remove and the plaintiff's right to choose the forum

are not equal, and uncertainties are resolved in favor of

remand.”'? Giving the earlier-served defendants another

chance to obtain removal each time a new defendant is served

with the summons and complaint creates a rolling deadline

that will repeatedly reopen, even when a new defendant is

added weeks or months after initial service on earlier-served

defendants. That makes it ever harder for a plaintiff to keep

the case where it started and belongs - in state court.

il. FEDERAL COURTS ARE SPLIT ON WHAT RULE

TO FOLLOW.

Federal circuit courts and district courts are split on what

rule to follow. In fact, within the Ninth Circuit itself, many

limit); Hill vy. Blind Industries and Services of Maryland, 179 F.3d

754, 757 (9th Cir. 1999) (“Removal and remand are . . . governed

by strict time limits.”).

'8 See, e.g., Brown v. Demco, Inc., 792 F.2d 478 482 (Sth Cir.

1986) (“[B]y restricting removal to instances in which the statute

clearly permits it, the rule is consistent with the trend to limit

removal and with the axiom that the removal statutes are to be

construed against removal.”); Duncan v. Stuetzle, 76 F.3d 1480,

1485 (9th Cir. 1996).

'9 Wilds v. United Parcel Service, Inc., 262 F. Supp. 2d 163, 176

(S.D.N.Y. 2003).

district judged follow the “first-served defendant” rule,”

while the “last-served defendant” rule is followed by other

district judges, including Judge Susan Bolton in the Arizona

federal district court case at issue in this Petition.”’

But this is not just an intra-circuit problem plaguing only

the Ninth Circuit. There is also a sharp inter-circuit

divergence. The Fifth and Seventh Circuits appear to follow

the “first-served defendant” rule.” The Fourth, Sixth, and

Eighth Circuits apparently follow the “last-served defendant”

20 See, e.g., McAnally Enterprises, Inc.'v. McAnally, 107 F.

Supp. 2d 1223 (C.D. Cal. 2000); Biggs Corp. v. Wilen, 97 F.

Supp. 2d 1040 (D. Nev. 2000); Teitelbaum v. Soloski, 843 F.

Supp. 614 (C.D. Cal. 1994); Samura v. Kaiser Foundation Health

Plan, Inc., 715 F. Supp. 970, 971 (N.D. Cal. 1989); Pic-Mount

Corp. v. Stoffel Seals Corp., 708 F. Supp. 1113 (D. Nev. 1989);

Transport Indemnity Co. v. Financial Trust Co. , 339 F. Supp. 405

(C.D. Cal. 1972); Morgan v. Asbestos Defendants (BHC), 2003

WL 945987 (N.D. Cal. Feb. 28, 2003); Ireland v. Checkerboard

Square, LLC, 2005 WL 43995 (Magistrate D. Or. Jan. 10, 2005),

report and recommendation adopted by 2005 WL 372204 (D. Ore.

Feb. 15, 2005); Innovacom, Inc. v. Haynes, 1998 WL 164933

(N.D. Cal. March 17, 1998); Bewley v. Cigna Financial Advisors,

1997 WL 601426 (N.L). Cal. Sept. 23, 1997).

2! See, e.g., Griffith v. Am. Home Prods., 85 F. Supp.2d 995, 999

(E.D. Wash. 2000); Ford v. New United Motors Mfg., 857 F.

Supp. 707, 708-10 (N.D. Cal. 1994).

22 Brown v. Demco, Inc., 792 F.2d 478, 481 (Sth Cir. 1986);

Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352, 354 (7th Cir.

2000).

rule.” The other circuit courts of appeal do not appear to

have selected a rule.

District courts across the nation, moreover, can be found

resting on both sides of the fence: many follow the “first-

served defendant” rule,”* while others use the “last-served

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

Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533

(6th Cir. 1999); Marano Enterprises of Kansas v. Z-Teca

Restaurants, L.P., 254 F.3d 753 (8th Cir. 2001).

4 Phoenix Container, L.P. v. Sokoloff, 83 F. Supp. 2d 9284(N.D.

Ill. 2000) (“first-served defendant” rule); Cellport Systems, Inc. v.

Peiker Acustic GMBH & Co. KG, 335 F. Supp. 2d 1131 (D. Colo.

2004) (“first-served defendant” rule); Auchinleck v. Town of

LaGrange, 167 F. Supp. 2d 1066 (E.D. Wis. 2001) (“first-served

defendant” rule); Biggs Corp. v. Wilen, 97 F. Supp. 2d 1040 (D.

Nev. 2000) (“first-served defendant” rule).

defendant” rule,” often in the same judicial circuit.”° It is a

shambles.

Only two things are certain. First, one side or the other

is having its rights trampled, although, because this Court has

never selected what rule to follow, we cannot know for sure

which side is suffering. Second, this Court can end the

confusion by accepting this Petition and telling the lower

courts what rule they must follow.

Il. THE INTERLOCUTORY ROAD PETITIONERS

TRAVELLED TO ARRIVE HERE - AND WHY

THEY SHOULD STAY.

This appeal started with the district judge’s denial of a

motion to remand, followed by her refusal to certify her

denial of the motion for remand for an interlocutory appeal,

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

(“last-served defendant” rule.); Shadie v. Aventis Pasteur, Inc.,

254 F. Supp. 2d 509 (M.D. Pa. 2003) (“last-served defendant”

rule); Piacente v. State University of New York at Buffalo, 362 F.

Supp. 2d 383 (W.D.N.Y. 2004) (“last-served defendant” rule);

Orlick v. J.D. Carton & Son, Inc., 144 F. Supp. 2d 337 (D.N.J.

2001) (“last-served defendant” rule).

2° Compare Smola v. Trumbull Ins. Co., 317 F. Supp. 2d 1232

(D. Colo. 2004) (district court in the Eighth Circuit following

“first-served defendant” rule) with Hartford Steam Boiler

Inspection and Ins. Co. v. Riviera Elec. LLC, 2006 WL 1046962

(D. Colo. 2006) (district court in the Eighth Circuit following “last-

served defendant” rule). Compare Kuhn vy. Brunswick Corp., 87}

F. Supp. 1444, 1447 (N.D. Ga. 1994) (district court in Eleventh

Circuit following “first-served defendant” rule) with Collings v. E-

Z Serve Convenience Stores, Inc. , 936 F.Supp. 892, 893-95 (N.D.

Fla. 1996) (district court in Eleventh Circuit following “last-served

defendant” rule).

because she thought that the case was not sufficiently

extraordinary.

The Ninth Circuit Court of Appeals then declined to grant

a writ of mandamus to tell this Arizona federal district court

— and all other district courts of the Ninth Circuit - what rule

must be followed in such cases. This was unexpected and an

abuse of discretion, since the Ninth Circuit routinely finds

“extraordinary” circumstances in cases concerning the

allegedly improper denial of motions to remand. It has

allowed interlocutory appeals in a number of such cases.”’

These courts apparently concluded that the case was not

so “extraordinary” that appellate guidance was needed. This

is, however, as extraordinary a case as the law can envision,

because such remand issues are almost completely non-

reviewable. After all, once the primary case is resolved in

federal court, the plaintiff whose case was removed from state

court has no viable remedy. How can a plaintiff show that he

or she was prejudiced by having the case decided in federal

as opposed to state court?

2” See, e.g., Sheeran v. General Electric Co., 593 F.2d 93, 97 (9th

Cir. 1979), cert. denied, 444 U.S. 868 (1979); Lee v. American

National Insurance Co. , 260 F.3d 997, 1000 (9th Cir. 2001), cert.

denied, 535 U.S. 928 (2002); Sullivan yv. First Affiliated Sec.,

Inc., 813 F.2d 1368, 1371 (9th Cir. 1987), cert. denied, 484 U.S.

850 (1987); ARCO Environmental Remediation, L.L.C. v.

Department of Health and Environmental Quality of Montana,

213 F.3d 1108, 1111, 1117-18 (9th Cir. 2000). Other circuit courts

similarly allow interlocutory appeals from orders denying motions

to remand. See, e.g., City of Clarksdale vy. BellSouth

Telecommunications, Inc. , 428 F.3d 206, 208-10 (Sth Cir. 2005);

Watson v. Philip Morris Companies, Inc. , 420 F.3d 852, 854 (8th

Cir. 2005).

And yet there is a difference - however elusive or non-

quantifiable that difference may sometimes be. In fact, the

federal system of government rests on the fundamental

premise that the federal and state governmental systems are

different. “Diversity not only in policy, but in the means of

implementing policy, is the very reison d'étre of our federal

system.”**

As far as lawsuits arising under state laws, state-court

judges are clearly authorities on substantive state law — they

do not need to guess or predict what it may be. Further,

state-court procedures — at least in Arizona superior court -

are faster and less cumbersome. Separate systems are always,

in logic and precedent, inherently unequal.” They are also,

in this case, unequal as a practical matter.

That is why this case is so extraordinary. If this issue is

not settled before the case is over, the Petitioners will have

been deprived of their right to litigate their case in state court.

The Ninth Circuit’s refusal even to consider this matter was

therefore a clear abuse of discretion.

*S Harmelin v. Michigan, 501 U.S. 957, 990 (1991). “It is in the

nature of a federal system that different states will apply different

rules of law, based on their individual perceptions of what is in the

best interests of their citizens.” ida re Agent Orange Product

Liability Litigation, 635 F.2d 987, 994 (2nd Cir. 1980), cert.

denied, 454 U.S. 1128 (1981).

9 See, e.g., Regents of University of California v. Bakke, 438

U.S. 265, 327 (1978) (Brennan, J., concurring in relevant part)

(Separate public facilities of all sorts are “inherently unequal.”).

CONCLUSION

No offense intended, but Petitioners do not want to be in

federal court. Arizona superior courts are better-equipped and

better-able to handle a case that depends on state law for its

resolution. Moreover, once back in state court, the case,

because of the caseload of the federal district court, will be

resolved quicker. That is true even with this detour into the

federal appellate system. As this Court has acknowledged,

any separate governmental systems are inherently unequal.

Petitioners filed this case in state court in the first place

because they believe that it is better to litigate this case there.

Indeed, it was their right to file this case there. And under

the “first-served defendant” rule, it is their right to have this

case remanded back to state court.

The “first-served defendant” rule is the one that this Court

should adopt, because it is the fairest rule and comports best

with the overall structure and intent of the removal statutes.

Ata minimum, however, this Court should accept the Petition

and tell the lower federal courts what rule they are to follow,

even if it is a different rule than the one that the Petitioners

seek.

Petitioners respectfully ask the Court to grant the Petition

for Writ of Certiorari, and to order the remand of this case to

Maricopa County Superior Court, State of Arizona.

Respectfully Submitted,

Charles M. Brewer

Counsel of Record

John B. Brewer

Dane L. Wood

David L. Abney

Law Offices of CHARLES M

BREWER, LTD.

5500 North 24th Street

Phoenix, Arizona 85016

(602) 381-8787

FAX: (602) 381-1152

Counsel for Petitioners

November 2006

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-72379

D.C. No. CV-05-01906-SRB

[Filed September 18, 2006]

In re: LAWRENCE HOBBS.

LAWRENCE HOBBS, individually; et al.,

Petitioners,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

Respondent,

PACIFICORP, an Oregon Corp; et al.,

Real Parties in Interest.

Nee eee eee eee eee ee”

Before: B. FLETCHER, HAWKINS and THOMAS, Circuit

Judges.

ORDER

The “petition for rehearing en banc” is construed as a

motion for reconsideration and for reconsideration en banc of

the July 25, 2006 order denying the petition for a writ of

mandamus. So construed, the motion for reconsideration is

denied and the motion for reconsideration en banc is denied

on behalf of the court. See 9th Cir. R. 27-10; 9th Cir. Gen.

Ord. 6.11.

No further filings shall be accepted in this closed case.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-72379

D.C. No. CV-05-01906-SRB

[Filed July 25, 2006]

In re: LAWRENCE HOBBS.

LAWRENCE HOBBS, individually; et al.,

Petitioners,

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

Respondent,

PACIFICORP, an Oregon Corp; et al.,

Real Parties in Interest.

Nw Nee eee ee ee ee”

Before: B. FLETCHER, HAWKINS and THOMAS, Circuit

Judges.

ORDER

Petitioners have not demonstrated that this case warrants

the intervention of this court by means of the extraordinary

remedy of mandamus. See Bauman v. United States Dist.

Court, 557 F.2d 650 (9th Cir. 1977). Accordingly, the

petition is denied.

DENIED.

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV-05-1906-PHX-SRB

[Filed February 24, 2006]

Lawrence Hobbs individually; Lawrence and

Glora Hobbs, husband and wife; Tyler Hobbs,

Jennifer Portillo, and Christine Hobbs, children,

Plaintiffs,

VS.

Pacificorp, an Oregon corporation; Pacificorp,

L.L.C., a Delaware corporation; S.D. Myers, Inc.,

a foreign corporation,

Defendants.

Nee eee eee eee eee Se”

ORDER

On January 17, 2006, the Court issued an Order denying

Plaintiffs’ motion to remand (Doc. 14). The Order addressed

the question of whether to apply the first-served defendant

rule or the later-served defendant rule,’ a question about

' As the Order stated, “The removal statute does not specifically

address whether, in cases involving multiple defendants, each

defendant has thirty days in which to remove the case, known as

which the Supreme Court and the Ninth Circuit are silent, and

about which other circuits, as well as district courts within the

Ninth Circuit, are split. See Order at 3-5. The Court came

down on the side of the later-served defendant rule. See Order

at 6-7. Plaintiffs now ask the Court to certify their

interlocutory appeal. (Doc. 16.) |

I. LEGAL STANDARDS AND ANALYSIS

28 U.S.C. § 1292 sets forth the standards which district

courts must apply in deciding whether to certify interlocutory

appeals. The statute provides, in relevant part,

(b) When a district judge, in making in a civil action

an order not otherwise appealable under this section,

shall be of the opinion that such order involves [1] a

controlling question of law [2] as to which there is

substantial ground for difference of opinion and [3]

that an immediate appeal from the order may

materially advance the ultimate termination of the

litigation, he shall so state in writing in such order.

In applying these three factors to the case at hand, the

Court is mindful that the certification of interlocutory appeals

is a mechanism to be employed sparingly and only in

“extraordinary cases where decision of an interlocutory appeal

might avoid protracted and expensive litigation.” U.S. Rubber

Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) (per

curiam) (reviewing the legislative history of 28 U.S.C.

§ 1292(b)). See In re Cement Antitrust Litig., 673 F.2d 1020,

the ‘later-served’ defendant rule, or whether removal must occur

within thirty days of when the first defendant was served, known

as the ‘first-served’ defendant rule.” Court’s Order dated January

17, 2006 (hereafter, “Order”) at 2 (citations omitted).

1026 (9th Cir. 1982) (quoting Coopers & Lybrand v. Livesay,

473 U.S. 463, 475, 98 S. Ct. 2454, 2461 (1978) (an

“appellant ‘still has the burden of persuading the court of

appeals that exceptional circumstances justify a departure

from the basic policy of postponing appellate review until

after the entry of a final judgment’”)); Loritz v. CMT Blues,

271 F. Supp. 2d 1252, 1253-54 (S.D. Cal. 2003).

The second prong of the statute supplies the most

compelling reason for certification. There is not only the

potential for “difference of opinion,” it is the reality across

the country. Circuits and district courts are deeply divided,

and the Ninth Circuit (as well as several other circuits) have

not yet provided an answer to this frequently recurring issue.

United Computer Sys., Inc. v. AT& T Corp., 298 F.3d 756,

762-63, n.1 (9th Cir. 2002) (acknowledging split of authority

and expressly declining to resolve the issue). Part of the

reason for the appellate courts’ silence could be the issue’s

elusive nature on appeal. Parties (or appellate courts) appear

unwilling to resolve the issue on interlocutory appeal, and it

is seldom pursued following final judgment. See Caterpillar,

Inc. v. Lewis, 519 U.S. 61, 75, 117 S. Ct. 467, 476 (1996)

(holding that once a diversity case in a federal court has

reached final judgment, that judgment will not be reversed on

appeal due to defects in the removal procedure, as long as

those defects are statutory, not jurisdictional). It is the

combination of this issue’s elusiveness on appeal and

frequency of recurrence at the trial court level that make it

well-suited for resolution by interlocutory appeal.

However, satisfaction of the second prong alone is

insufficient. to warrant the certification of an issue for

interlocutory appeal. Plaintiffs encounter problems fulfilling

the first and third prongs. Under the first prong, a “question

of law” is “controlling” if “resolution of the issue on appeal

could materially affect the outcome of litigation in the district

court.” In re Cement Antitrust Litig., 673 F.2d atl1026 (citing

U.S. Rubber Co., 359 F.2d at 785)). Plaintiffs argues that a

reversal of the Order denying remand would “materially

affect the outcome of litigation” by terminating it. The Court

disagrees. However this appeal was resolved, it would have

no effect on the outcome of the case, only the forum where

the case was litigated. Reversal of the Order denying remand

would mean that the case proceeds in state court; affirmance

would mean it proceeds in this Court. Either way, the case is

governed by Arizona personal injury law.

Under the third prong, district courts must inquire into

whether “an immediate appeal from the order may materially

advance the ultimate termination of the litigation.” Here,

certification will inevitably delay the litigation. If the Ninth

Circuit takes the case and affirms the Court’s Order, then the

case will proceed in the district court, delayed by the time it

took for the Ninth Circuit to decide the appeal. If the Ninth

Circuit takes the case and reverses, then the case will proceed

in the state court, also delayed by the time it took for the

Ninth Circuit to decide the appeal. Either way, appeal would

not hasten the ultimate termination of this litigation.

On balance, the Court believes that although there are

excellent reasons that this issue should be resolved on

interlocutory appeal, a faithful interpretation of 28 U.S.C.

§ 1292 precludes that method of resolution. Plaintiffs’ motion

is denied.

IT IS ORDERED denying Plaintiffs’ Motion for

Certification of Interlocutory Appeal. (Doc. 16).

IT IS FURTHER ORDERED granting Plaintiffs Motion

for Expedited Consideration of Interlocutory Appeal (Doc.

17).

DATED this 24" day of February, 2006.

/s/ Susan R. Bolton

Susan R. Bolton

United States District Judge

10a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR DISTRICT OF ARIZONA

No. CV-05-1906-PHX-SRB

[Filed January 17, 2006]

Lawrence Hobbs individually; Lawrence and

Glora Hobbs, husband and wife; Tyler Hobbs,

Jennifer Portillo, and Christine Hobbs, children,

Plaintiffs,

VS.

Pacificorp, an Oregon corporation; Pacificorp,

L.L.C., a Delaware corporation; $.D. Myers, Inc.,

a foreign corporation,

Defendants.

ee ee ee ee a

ORDER

At issue is Plaintiffs’ motion for remand pursuant to 28

U.S.C. § 1447(c). (Doc. 8). For the reasons that follow, the

motion is denied.

I. BACKGROUND

Plaintiffs Lawrence Hobbs, Gloria Hobbs, Tyler Hobbs,

Jennifer Portillo, and Christine Hobbs filed this tort action in

lla

Superior Court of the State of Arizona on May 5, 2005.

Plaintiffs allege Defendants’ negligence and misconduct

resulted in a transformer fire and explosion on May 8, 2003,

that caused Plaintiff Lawrence Hobbs to suffer second and

third degree burns. The original Complaint named S.D.

Myers, Inc. (“S.D. Myers”) and PacifiCorp L.L.C. as

Defendants.

S.D. Myers was served with the original Complaint on

May 13, 2005, and service was at least attempted on

PacifiCorp, L.L.C. on May 16, 2005, though there is no

evidence that this was actually accomplished. On May 24,

2005, the Complaint was amended, adding PacifiCorp as a

defendant.’ The Amended Complaint was served on

Pacificorp on May 24, 2005, and on S.D. Myers on May 25,

2005.

On June 23, 2005, PacifiCorp and PacificCorp LLC filed

a notice of removal with this Court pursuant to 28 U.S.C.

§ 1332 on the basis of diversity of citizenship, and S.D.

Myers consented to the removal on the same day. Plaintiffs

now move to remand the case, arguing that the notice of

removal was untimely. Additionally, Plaintiffs seek attorney’s

fees and costs pursuant to 28 U.S.C. § 1447(c).

ii. LEGAL STANDARDS AND ANALYSIS

Because S.D. Myers did not attempt to remove this action

within thirty days of being served with the original

Complaint, Plaintiffs argue that the notice of removal was

' PacifiCorp and PacifiCorp, L.L.C. have both filed affidavits

stating that PacifiCorp, L.L.C. is in no way affiliated or associated

with PacifiCorp and was not a party to the alleged tortious acts.

(Monson Aff. § 4,6; O'Connor Aff. 4 3-5).

12a

untimely. Defendants argue that each defendant has thirty

days from the date of service in which to file a notice of

removal and obtain joinder firom all other defendants.

The procedure for removing state actions to federal court

is governed by 28 U.S.C. § 1446. The removal statute states

that “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. . . .” 28 U.S.C. § 1446(b).

The removal statute does not specifically address whether,

in cases involving multiple defendants, each defendant has

thirty days in which to remove the case, known as the “later-

served” defendant rule, or whether removal must occur within

thirty days of when the first defendant was served, known as

the “first-served” defendant rule. Ratliff v. Workman, 274 F.

Supp. 2d 783,784 (S.D. W. Va. 2003); Smith v. Mail Boxes,

Etc. USA, Inc., 191 F. Supp. 2d 1155, 1158 (E.D. Cal.

2002); United Traffic Consultants, Inc. v. Premium Logistics,

Inc., 2001 WL 34039477, at *3 (D. Or. Nov. 16, 2001);

Biggs Corp. v. Wilson, 97 F. Supp. 2d 1040, 1043 (D. Nev.

2000). Neither the Supreme Court of the United States nor the

Ninth Circuit have ever addressed this issue. Within the Ninth

Circuit, the District Courts are split regarding whether to

apply the first-served defendant rule or the last-served

defendant role. See e.g., United Traffic Consultants, Inc.,

2001 WL 34039477 at *3; Biggs Corp. F. Supp. 2d at 1043;

Griffith v. Am. Home Prods., 85 F. Supp. 2d 995, 999 (E.D.

Wash. 2000); Ford v. New United Motors Mfg., 857 F. Supp.

707, 708-10 (N.D. Cal. 1994): Samura v. Kaiser, 715 F.

13a

Supp. 970, 971 (N.D. Cal. 1989). This is the first time this

issue has been considered in the District of Arizona.’

A. First-Served Defendant Rule

The first-served defendant rule, which has been followed

by the Fifth Circuit and a large number of district courts,

states that the thirty day removal deadline begins to run for all

defendants as soon as any defendant is served with process.

See, e.g., Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d

1254, 1262-63 (Sth Cir. 1988); Brown v. Demco, Inc., 792

F.2d 478, 482 (Sth Cir. 1986); Smith, 191 F. Supp. 2d at

1158; Biggs, 97 F. Supp. 2d at 1044; Griffith, 85 F. Supp. 2d

at 999. If the first-served defendant fails to remove the case

within the thirty day period, the right to removal will have

been waived and the defendant will be foreclosed from joining

any future removal attempts. See, e.g., Getty, 841 F.2d at

1263; Brown, 792 F.2d at 482; Biggs, 97 F. Supp. 2d at

1044; Faulk v. Superior Industry, 851 F. Supp. 457, 458

(M.D. Fla. 1994). Thus, because of the unanimity

’ Plaintiffs incorrectly argue that the first-served defendant rule was

applied in Schwartz v. FHP International Corporation. 947 F.

Supp. 1354 (D. Ariz. 1996). In Schwartz, the District Court held

that the first-served defendant, who had timely filed a notice of

removal, was required to obtain the consent of another defendant

who, though not yet having been served with process, had filed an

answer to the complaint. Schwartz, 947 F. Supp. at 1363. Thus,

the case was decided on the unanimity requirement, not the first-

served defendant rule. Even if Schwartz was decided under the

first-served defendant rule, that case does not constitute binding

authority on this Court

i4a

requirement,’ removal is prohibited for all defendants when

the first-served defendant rule is applied.

In Brown v. Demco, 792 F.2d 478,480 (Sth Cir. 1986), the

Fifth Circuit adopted the first-served defendant role. In that

case, the last-served defendant filed a notice of removal with

the consent of the other defendants and within thirty days of

being served, but more than four years from the start of the

litigation. /d. The court reasoned that the first-served

defendant rule “follows logically from the unanimity

requirement,” and comports with “the trend to limit removal

jurisdiction and with the axiom that removal! statutes are to be

strictly construed against, removal.” /d. at 481. As to the

criticism that the first-served defendant rule is unfair to later-

served defendants, the court stated,

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

subsequently added defendant who is merely not

granted an opportunity that might have been available

to others. 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 would have been in if the co-

defendant had opposed removal or were domiciled in

the same state as the plaintiff. To permit the

defendants in this case to obtain removal after they

have tested state-court waters for four years would

give them a second opportunity to forum-shop and

further delay the progress of the suit. The unfairness

’ The unanimity, requirement states that for removal to be valid, all

defendants, except nominal or formal parties, must consent to and

join in the petition for removal. 28 U.S.C. § 1446(c); Brown, 792

F.2d at 481; Tri-Cities Newspapers, Inc. v. Tri-Cities Printing

Pressmen and Assistants’ Local349, 427 F.2d 325, 326-27 (Sth

Cir. 1970); Biggs, 97 F. Supp. 2d at 1044 n.3.

1Sa

of this to the plaintiff outweighs the unfairness, if any,

to the last-joined defendant. The forum for a suit

ought to be settled at some time early in the litigation.

Id. The Fifth Circuit reaffirmed its holding in Getty Oil

Corporation v. Insurance Company of North America, noting

that the first-served defendant rule “promotes unanimity

among the defendants without placing undue hardships on

subsequently served defendants.” 841 F.2d at 1263.

CB. Later-Served Defendant Rule

The later-served defendant rule, which has been adopted

by the Sixth and the Eight Circuits and many district courts,

states that each defendant has thirty days from the time of

service to convince all earlier-served defendants to join a

petition for removal. Marano Enters. of Kan. v. Z-Teca

Rests., L.P., 254 F.3d 753, 755-57 (8th Cir. 2001); Brierly

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

Cir. 1999).

One rationale for this rule is that it is more faithful to the

language of the removal statute. In Brierly v. Alusuisse

Flexible Packaging Inc., the Sixth Circuit stated that, “as 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... If Congress had

intended the 30-day removal period to commence upon

service of the first defendant, it could have easily so

provided.” 184 F.3d at 533.

The later-served defendant rule has also been defended on

the basis of fairness. In McKinney v. Board of Trustees of

Maryland Community College, the Fourth Circuit reasoned

16a

that “the removal procedure is intended to be fair to both

plaintiffs and defendants alike.” 955 F.2d 924, 927 (4th Cir.

1992) (punctuation and quotations omitted). By adopting the

first-served defendant rule,

[T]he rights of defendants could rather easily be

overcome by tactical maneuvering by plaintiffs.

Suppose, for example, plaintiff serves defendant A,

thus starting the thirty-day period running, and then

maneuvers to serve defendant B late on the thirtieth

day. Obviously B is unlikely to rush to the courthouse

door before it closes to file his joinder of A’s removal

petition; he is unlikely to even realize what is

happening to him before it is too late. (There is

nothing on the summons form such a defendant would

receive-which of course would be a summons to state,

not federal, court-that would tell him the rules for

removal to federal court, or warn him that he might

have much less than thirty days to join in a removal

petition). This cannot be what Congress had in mind.

Congress created the removal process to protect

defendants. It did not extend such protection with one

hand, and with the other give plaintiffs a bag of tricks

to overcome it.

Id. at 928.

C. The Present Case

The Court believes that the language of the removal

statute, Congress’ intent in enacting the statute, as well as

considerations of fairness are better served by the later-served

defendant rule. While it is true that the removal statute should

be “strictly construed against removal,” Shamrock Oil & Gas

Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868, 872

17a

(1914), the statute should not be accorded an interpretation

that contradicts its plain language. The Court finds itself in

agreement with the Sixth Circuit that to adopt the first-served

defendant rule is to insert the word “first” before “defendant”

in the removal statute. Brierly, 184 F.3d at 533. Had

Congress wished the statute to be triggered by service upon

the first defendant, it could have explicitly said so.

Further, as stated by the court in McKinney, it is illogical

to think that Congress would grant defendants the power to

remove a case to federal court and at the same time allow

plaintiffs to subvert that power. Congress’ concern about

fairness towards defendants is also evident in 28 U.S.C.

§ 1448, which ensures that defendants served after removal

have an opportunity to seek remand.

Finally, the Court does not believe that the later-served

defendant rule undercuts the well-founded need to settle the

appropriate forum as early in the case as possible. A plaintiff

that wishes to cement its forum choice early in the case should

simply serve all named defendants early in the case, thereby

preventing the problem of removal by a later-served

defendant.

In the present case, PacifiCorp filed a timely petition for

removal within thirty days of first being served. To prevent

S.D. Myers from joining the removal petition would eliminate

PacificCorp’s opportunity to remove the action and vitiate the

intent of the removal statute. PacificCorp’s petition for

removal was valid under the later-served defendant rule.

Therefore, Plaintiffs’ motion for remand is denied. Attorneys’

fees and costs will not be awarded.

IT IS ORDERED denying the Plaintiffs’ motion for

remand. (Doc. 8).

18a

DATED this 17" day of January, 2006.

/s/ Susan R. Bolton

Susan R. Bolton

United States District Judge

19a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Docket No. 06-72379

U.S. Ct. Appeals Docket 06-72379

D.C. No. CV-05-01906-SRB

[Filed August 1, 2006]

In re: LAWRENCE HOBBS.

LAWRENCE HOBBS, individually; et al.,

Plaintiffs-Petitioners,

Vv.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

Respondent,

PACIFICORP, an Oregon corp.; et al.,

Real Parties in Interest.

PLAINTIFFS-PETITIONERS’ PETITION

FOR REHEARING EN BANC

STATEMENT OF COUNSEL ON

BASIS FOR PETITION

20a

Under Rule 35(b), Fed. R. App. Proc., Counsel for

Petitioners (“Plaintiffs”) submit that two factors warrant

rehearing en banc of this removal case.

First, the full Court should act because this issue evades

review. The issue is the proper way to remove a case. When

there are more than one defendants, there are two rules: (1)

the “first-served” defendant rule; and (2) the “last-served”

defendant rule. Under the first, PacifiCorp’s notice of

removal was untimely; under the last, notice of removal was

timely, and bars remand. Judge Bolton denied remand,

adopting the “last-served” defendant rule. She declined to

certify for an interlocutory appeal, but encouraged filing a

writ of mandamus.

Neither the Supreme Court nor this Court has ever

decided what rule to follow. District courts in our Circuit -

and courts across the nation - are split. This Court, en banc,

should accept this Petition because this issue has evaded

review in our Circuit for decades. The July 25, 2006 Order

(see Exh. 4) denying mandamus was an abuse of discretion

because the issue is “extra-ordinary ” - since there is no other

way to resolve this issue than by appellate review before a

case ends. Once a case ends, plaintiffs right to have the case

litigated in the state court is lost forever. This exasperating

problem often arises, has deeply divided this Circuit’s district

courts, and should be resolved now.

Second, this is a clear issue with an “A” or “B” answer.

It is not an issue where it is sometimes “A” and sometimes

“B,” sometimes a combination of’A” and “B,” and

sometimes neither “A” nor “B.” It is one or the other, but not

both.

2la

This Court either follows the “first-served” defendant rule

or it follows the “last-served” defendant rule. Doing both

would be impossibly absurd. It is time for the Court to choose

which rule to follow and to end the confusion.

FACTUAL AND PROCEDURAL BACKGROUND

1. The “Unit 4” fire and explosion: On May 8, 2004,

Lawrence Hobbs was a technician at the Cholla Power Plant,

an electric generating facility in Joseph City, Navajo County,

Arizona.' Hobbs was walking near a large generator and

transformer (Unit 4) when it caught fire and exploded,

severely injuring Hobbs. Real Parties in _ Interest

(“Defendants”) owned, operated, and/or worked on Unit 4.

2. Plaintiffs sue Defendants in Arizona state court: On

May 5, 2005, Plaintiffs sued Defendants in Maricopa County

Superior Court, Phoenix, Arizona. Plaintiffs served the

summons and complaint on the two proper named Defendants

as follows: (a) S.D. Myers, Inc. was served on May 16,

2005; (b) PacifiCorp was served on May 24, 2005.’

3. Notice of removal and motion to remand: On June 23,

2005, PacifiCorp filed a notice of removal to federal district

court. This was more than 30 days after S.D. Myers was

served, but within 30 days after service on PacifiCorp. On

July 15, 2005, Plaintiffs filed their “Motion for Remand to

Superior Court.”

' Joseph City is a small town about 78 miles east of Flagstaff,

Arizona.

* Defendant PacifiCorp LLC was served on May 13, 2005, but it

turned out that this unrelated entity was not involved in any of the

events of this case, and thus was not a proper Defendant.

22a

4. The district court’s January 17, 2006 Order: Judge

Bolton denied remand, noting that there was a decided split of

authority on what rule to follow, since the removal statute did

not specifically address whether to follow the “first-served”

or the “last-served” rule..’ “The first-served defendant rule,

which has been followed by the Fifth Circuit and a large

number of district courts, states that the thirty-day removal

deadline begins to run for all defendants as soon as any

defendant is served with process. If the first-served defendant

fails to remove the case within the thirty-day period, the right

to removal will have been waived and the defendant will be

foreclosed from joining any future removal attempts. ”*

On the “last-served” defendant rule, she wrote: “The

later-served defendant rule, which has been adopted by the

Sixth and the Eight Circuits and many district courts, states

that each defendant has thirty days from the time of service to

convince all earlier-served defendants to join a petition for

removal.”° Judge Bolton followed the “last-served” defendant

rule, and denied the remand motion.

5. Motion for certification of the interlocutory appeal:

Plaintiffs filed a motion for certification of interlocutory

appeal” on Jan. 20, 2006. In her Feb. 24, 2006 Order, Judge

Bolton agreed that: “Circuits and district courts are deeply

divided, and the Ninth Circuit (as well as several other

circuits) have not yet provided an answer to this frequently

> Exh. 1, Jan. 17, 2006 Order at 3, lines 3-5.

* Exh. 1, Jan. 17, 2006 Order at 3, lines 12-14, 17-19 (citations

omitted).

> Exh. 1, Jan. 17, 2006 Order at 3, lines 12-14, 17-19 (citations

omitted).

23a

recurring issue. Part of the reason for the courts’ silence

could be the issue’s elusive nature on appeal. Parties (or

appellate courts) appear unwilling to resolve the issue on

interlocutory appeal, and it is seldom pursued following final

judgment.”° While declining to certify the appeal, Judge

Bolton strongly encouraged Plaintiffs to pursue this matter

further:

I would love it if the Ninth Circuit would

address the issue so that we would know, once and

for all... | would love it if they would. It didn’t seem

to be one of the standards upon which I was supposed

to certify an interlocutory appeal.

So we didn’t, but if you want to pursue it, I

would certainly encourage you to do so, because the

Ninth Circuit, I think, can apply whatever standard

they think is appropriate even it it’s a little different

from the one we’re required to follow.

But I don’t see any reason, while you’re discussing

all of that and determining whether you want to do

that, to hold up the proceedings with this case,

because even if the Ninth Circuit takes a look at it,

what is done between now and when they may decide

whether to take to case or not will be useful whether

you're litigating here or back in state court.’

6. The three-judge panel denied the mandamus writ:

Plaintiffs filed a petition for writ of mandamus, which a thrce-

judge panel of this Court denied on July 25, 2006 (Exh. 4):

®* Exh. 2, Feb. 24, 2006 Order at 2, lines 24-25; 3, lines 1-3

(citations omitted).

’ Exh. 3, Reporter’s Transcript of Proceedings at 5-6 (emphasis

added) (Feb. 27, 2006).

24a

“Petitioners have not demonstrated that this case warrants the

intervention of this court by means of the extraordinary

remedy of mandamus.” This is an extraordinary issue that

has evaded review, and needs resolution.

STANDARD OF REVIEW

The writ of mandamus is an extraordinary remedy.® A

five-factor test is used to evaluate the propriety of a writ of

mandamus under 28 U.S.C. § 1651:

(1) Petitioner has no other adequate means, such as a

direct appeal, to attain the desired relief.

(2) Petitioner will be damaged or prejudiced in a way

not correctable on appeal.

(3) The district court’s order is clearly erroneous as a

matter of law.

(4) The district court’s order is an often-repeated

error, or manifests a persistent disregard of the federal

rules.

(5) The district court’s order raises new and important

problems, or issues of law of first impression.’

* Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394,

402 (1976).

° Bauman vy. U.S. Dist. Ct. for the N. Dist. of Cal. , 557 F.2d 650,

654-55 (9th Cir. 1977).

25a

“{I}t is clear that the third factor, the existence of clear

error as a matter of law, is dispositive. 19 All factors militate

in favor of accepting this writ.

THE ISSUE

In removal cases, does the Ninth Circuit Court of Appeals

follow the “first-served” defendant rule or the “last-served”

defendant rule?

LEGAL ARGUMENT

A. This is an extra-ordinary case where circuit-wide

guidance is needed.

“Existence of a clear error as a matter of law” is the

dispositive factor for evaluating a petition for writ of

mandamus.'' This case is extra-ordinary because there is a

“Yes” or “No” answer that only this Court can give. If this

Court follows the “first-served” defendant rule, then the

district court committed clear error as a matter of law, and

this case should be remanded. But if this Court follows the

“Jast-served” defendant rule, then the district court committed

no error, and this case should stay in federal district court.

Only this Court can say which is right and which is wrong.

This is an extra-ordinary case because refusing to take the

writ of mandamus simply leaves the issue up tn the air - a

huge disservice to the lawyers and judges of the Ninth

Circuit. Here, doing nothing 1s a positive harm.

'° Calderon v. U.S. Dist. Ct. for the N. Dist. of Cal., 134 F.3d

981, 984 (9" Cir. 1998).

'' Burlington N. & Santa Fe Ry. Co. v. U.S. Dist Ct. for the

Dist. of Cal., 408 F.3d 1142, 1146 (9th Cir. 2005).

26a

B. The district court committed clear legal error.

The district court failed to follow the “first-served”

defendant rule, which is: (1) the fairest rule; and (2) the

apparent majority rule.'? The analysis starts with the removal

process: A defendant may remove a state civil case to federal

court if there is diversity or federal question jurisdiction. 28

U.S.C. § 1441(a) & (b). But the defendant must comply with

28 U.S.C. § 1446(b), the first paragraph of which requires

filing a notice of removal within 30 days after notice of the

complaint. When there are multiple defendants, all defendants

must join. The Supreme Court adopted this “unanimity rule”

long ago.'’ All courts now follow it."

Under the unanimity rule, any one defendant may prevent

a case from being removed. If a defendant’s removal notice

fails to meet the timeliness or unanimity requirements of 28

U.S.C. § 1446(b), the district court may remand the action

upon a plaintiff's timely motion. 28 U.S.C. § 1447(c).

'2 United Comp. Sys., Inc. v. AT& T Corp., 298 F.3d 756, 762

(9th Cir. 2002) (First-served rule apparently adopted by majority

of courts.).

' See, e.g., Chicago, Rock Island & Pacific Railway Co. y.

Martin, 178 U.S. 245, 248 (1900).

'* Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d 1261, 1266

(9th Cir. 1999): Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th

Cir. 1998). Congress recently abrogated the “unanimity rule” for

certain class action lawsuits. See Abrego Abrego v. The Dow

Chemical Co., 443 F.3d 676 (9th Cir. 2006). But that change does

not affect the present case, which is not a class action.

27a

Courts strictly construe removal statutes against removal,

resolving doubt in favor of remand.'° “{S]trict construction is

especially warranted in diversity cases, where concerns of

comity mandate that state courts be allowed to decide state

cases unless the removal action falls squarely within the

bounds Congress has created.”'® Courts have adopted the

“first-served” rule for three main reasons: (1) It inevitably

flows from the unanimity rule; (2) forum selection should be

resolved as early as possible; and (3) Removal statutes must

be construed narrowly.

First, under the unanimity rule, all defendants must join

a removal even , though they have not received a copy of the

complaint.'’ In fact, failure to move for removal within the

30-day period is an irrevocable choice not to remove. “To

hold otherwise would have the effect of extending the thirty-

day limitation as applied to that defendant for an indefinite

period.”'* Looked at from a different perspective, failure to

'? Gaus v. Miles, Inc., 980 F.2d 564, 566 (9" Cir. 1992) (“We

strictly construe the removal statute against removal jurisdiction.

Federal jurisdiction must be rejected if there is any doubt as to the

right of removal in the first instance.”) (citations omitted).

'© Horn v. Service Merchandise Co., Inc., 727 F. Supp. 1343,

1345 (N.D. Cal. 1990) (citation and internal quote marks omitted).

'’ See Chicago, Rock Island & Pacific Railway Co. v. Martin, 178

U.S. 245,248 (1900); Embury y. King, 361 F.3d 562, 563 n.1

((9th Cir. 2004). The only exception to the unanimity rule may be

for nominal, unknown, or fraudulently joined parties. United

Comp. Sys., Inc. v. AT& T Corp., 298 F.3d 756, 762-63 (9th Cir.

2002). That exception does not apply here.

' Trans. Indem. Co. vy. Financial Trust Co., 339 F. Supp. 405,

409 (C.D. Cal. 1972).

28a

remove within thirty days operates as a waiver. Logically

then, that defendant must be barred from consenting to a later-

served defendant’s removal notice, or there would be no

unanimity.’

Second, courts applying the majority rule stress the need

to settle forum selection as early as possible. Indeed,

Congress specified that, if removal does not occur within one

year after commencement of the action in state court, it cannot

be removed ever.” This is an inherent repudiation of the last-

served defendant rule, which would sanction removal even if

a defendant were served over a year after commencement of

the state-court action.

Third, the rule requiring narrow construction of removal

statutes supports the majority rule.’' Giving the first-served

defendant another chance to agree to removal each time

another defendant receives notice of the complaint creates a

rolling deadline that will keep rolling as new defendants are

named and served.

'? Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1254 (9th

Cir. 1989) (Failure to remove within 30 days results in a waiver of

the right to remove.).

F.3d 683, 688-89 (9th Cir. 2005); Hill v. Blind Ind. & Serv. of

Md., 179 F.3d 754, 757 (9th Cir. 1999).

*! See, e.g., Brown v. Demco, Inc., 792 F.2d 478, 482 (Sth Cir.

1986) (“[B]y restricting removal to instances in which the statute

clearly permits it, the rule is consistent with the trend to limit

removal and with the axiom that the removal statutes are to be

construed against removal.”); Duncan v. Stuetzle, 76 F.3d 1480,

1485 (9th Cir. 1996).

29a

C. Plaintiffs have no other means to attain the desired

relief.

Plaintiffs have no appeal-of-right from an order denying

a motion to remand. Judge Bolton encouraged the mandamus

petition.” Indeed, because a direct appeal is blocked, a

petition for writ of mandamus is the only avenue of relief.

D. Plaintiffs will be prejudiced in a way not correctable on

appeal.

Plaintiffs started this case in state court because that is

their right, because state court is demonstrably faster, and

because state court judges inherently know more about issues

of state law than does the federal court, which can only

“predict” substantive state law. On appeal, there is no way to

correct any prejudice caused by excessive delays in federal

district court and by rulings on substantive matters that differ

from the rulings that a state judge would give.

E. The district court’s order is an often-repeated error of

law.

One of these rules is right; one is wrong. Within our

Circuit, many district courts follow the first-served defendant

rule” and some district courts follow the last-served defendant

*~ Exh. 3, Reporter’s Transcript of Proceedings at 5-6 (emphasis

added) (Feb. 27, 2006).

*S See, e.g., McAnally Ent., Inc. v. McAnally, 107 F. Supp. 2d

1223 (C.D. Cal. 2000); Biggs Corp. v. Wilen, 97 F. Supp. 2d

1040 (D. Nev. 2000); Teitelbaum yv. Soloski, 843 F. Supp. 614

(C.D. Cal. 1994); Samura v. Kaiser Found. Health Plan, Inc.,

715 F. Supp. 970, 971 (N.D. Cal. 1989); Pic-Mount Corp. v.

30a

rule.“ This Circuit traditionally celebrates its diversity, but

diametrically opposite results in district courts within our

Circuit on this simple issue is not diversity, it 1s anarchy

depriving one class of litigants of the benefits of the correct

rule of law - whatever this Court declares that rule to be.

F. The district court’s order raises issues of law of first

impression.

What rule to follow is an issue of first impression in our

Circuit. This is a chance to answer the question and provide

guidance for all in the Ninth Circuit.

CONCLUSION

The district court’s error is one that would have never

happened if this Court had just adopted one removal rule or

the other. This is an extraordinary situation that this Court

should correct by accepting this petition for rehearing en banc

and finally adopting a removal rule.

Stoffel Seals Corp., 708 F. Supp. 1113 (D. Nev. 1989); Trans.

Indem. Co. v. Fin. Trust Co., 339 F. Supp. 405 (C.D. Cal. 1972);

Morgan v. Asbestos Defs. (BHC), 2003 WL 945987 (N.D. Cal.

Feb. 28, 2003); Ireland v. Checkerboard Square, LLC, 2005 WL

43995 (Magistrate D. Or. Jan. 10, 2005), rpt. & rec. adopted by

2005 WL 372204 (D. Ore. Feb. 15, 2005); Innovacom, Inc. v.

Haynes, 1998 WL 164933 (N.D. Cal. March 17, 1998); Bewley

vy. Cigna Fin. Advisors, 1997 WL 601426 (N.D. Cal. Sept. 23,

1997).

** Griffith v. Am. Home Prods., 85 F. Supp.2d 995, 999 (E.D.

Wash. 2000); Ford v. New United Motors Mfg., 857 F. Supp.

707, 708-10 (N.D. Cal. 1994).

3la

DATED this I“ day of August, 2006.

/s/ David L. Abney, Esq.

David L. Abney, Esq.

Attorneys for Plaintiffs-Petitioners

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 06-72379

[Filed May 2, 2006]

LAWRENCE HOBBS individually;

LAWRENCE and GLORIA HOBBS, husband

and wife; TYLER HOBBS, JENNIFER

PORTILLO, and CHRISTINE HOBBS, children,

Petitioners,

UNITED STATES DISTRICT COURT

for the DISTRICT of ARIZONA,

Respondent,

PACIFICORP, an Oregon corporation;

PACIFICORP, L.L.C., a Delaware Corporation;

S.D. MYERS, INC., a foreign corporation,

Real Parties in Interest.

Nw eee eee eee “ee”

PETITION FOR WRIT OF MANDAMUS

A. Introduction: The nature of this writ of mandamus.

The question concerns the time limit for removing a case

to federal court. When there are multiple defendants, there are

two rules for determining when a notice of removal must be

33a

filed. One is the “first-served” defendant rule; the other is the *

“last-served” defendant rule. Under the “first-served” rule,

notice of removal of one Real Party in Interest (PacifiCorp)

was untimely. Under the “last-served” rule, the notice of

removal was timely, and could bar a remand to state court.

The United States District Court for the District of

Arizona (Hon. Susan R. Bolton) refused to grant the motion

to remand filed by Petitioners (“Plaintiffs”). Judge Bolton

held that the “last-served” defendant rule applied. When

Plaintiffs moved for certification of an interlocutory appeal,

Judge Bolton declined, but later expressly encouraged

Plaintiffs to pursue the matter through a writ of mandamus to

the Ninth Circuit Court of Appeals.

Neither the Supreme Court nor the Ninth Circuit has ever

decided what rule to follow. District courts within the Ninth

Circuit - and circuit and district courts across the nation - are

sharply split. This Court should accept the Petition because

this issue has evaded appellate review in the Ninth Circuit for

decades. Judges, lawyers and litigants within the Ninth

Circuit need and deserve guidance on this important, elusive

subject.

B. The factual and procedural history of the case.

The “Unit 4” fire and explosion

On May 8, 2004, Plaintiff Lawrence Hobbs was an

Engincering/Installation Technician at Cholla Power Plant, an

electric generating facility located in Joseph City, Navajo

34a

County, Arizona,' and owned by Arizona Public Service

Company. Hobbs was walking near a huge generator and

transformer (“Unit 4”) of the facility when there was a fire

and explosion of the Unit 4 main transformer that knocked

him down and inflicted severe second-degree and third-degree

burns. Real Parties in Interest (“Defendants”) owned,

operated, and/or worked on Unit 4. Plaintiffs investigated and

learned that Defendants’ negligence had caused the accident.

Plaintiffs sue Defendants in Arizona state court

On May 5, 2005, Plaintiffs sued Defendants in Maricopa

County Superior Court in Phoenix, Arizona. Plaintiffs served

the summons and complaint on the two proper named

Defendants as follows:

e Defendant S.D. Myers, Inc. was personally served on

May 16, 2005.

e Defendant PacifiCorp was personally served on May

24, 2005.’

Notice of removal and motion to remand

On June 23, 2005, Defendant PacifiCorp filed a notice of

removal to the United States District Court for the District of

' Joseph City is a small town about 78 miles east of Flagstaff,

Arizona, or about 845 miles southeast of San Francisco, California.

* Defendant PacifiCorp LLC was served on May 13, 2005, but it

turned out that this unrelated entity was not involved in any of the

events of this case, and thus was not a proper Defendant. Thus, at

this point, there are only two proper named Defendants in this

case.

35a

Arizona. This was more than 30 days after Defendant S.D.

Myers was served with the summons and complaint, but

within 30 days after service was made on Defendant

PacifiCorp. On July 15, 2005, Petitioners filed their “Motion

for Remand to Superior Court.”

The district court’s January 17, 2006 Order

In an Order filed January 17, 2006, District Judge Susan

R. Bolton denied the motion to remand. In her Order, Judge

Bolton noted that there was a decided split of authority on

what rule to follow when determining timeliness of a notice of

removal from state to federal court, because the removal

statute did not specifically address whether to follow the

“first-served” or the “last-served” defendant rule. Judge

Bolton also correctly stated:

Neither the Supreme Court of the United States nor

the Ninth Circuit have ever addressed this issue.

Within the Ninth Circuit, the District Courts are split

regarding whether to apply the first-served defendant

rule or the last-served defendant rule.”

Judge Bolton explained: “The first-served defendant rule,

wiveh has been followed by the Fifth Circuit and a large

number of district courts, states that the thirty-day removal

deadline begins to run for all defendants as soon as any

defendant is served with process. If the first-served defendant

fails to remove the case within the thirty-day period, the right

> Exh. 1, Jan. 17, 2006 Order at 3, lines 3-5.

36a

to removal will have been waived and the defendant will be

foreclosed from joining any future removal attempts.”*

On the “last-served” defendant rule, Judge Bolton

observed that: “The later-served defendant rule, which has

been adopted by the Sixth and the Eight Circuits and many

district courts, states that each defendant has thirty days from

the time of service to convince all earlier-served defendants to

join a petition for removal.”°

Judge Bolton concluded that she should follow the “last-

served” defendant rule, and denied Plaintiffs’ motion to

remand.

The motion for certification of the interlocutory appeal

Plaintiffs filed a “Motion for Certification of Interlocutory

Appeal” with the district court on January 20, 2006. In her

February 24, 2006 Order, Judge Bolton agreed that: “Circuits

and district courts are deeply divided, and the Ninth Circuit

(as well as several other circuits) have not yet provided an

answer to this frequently recurring issue. Part of the reason

for the courts’ silence could be the issue’s elusive nature on

appeal. Parties (or appellate courts) appear unwilling to

resolve the issue on interlocutory appeal, and it is seldom

pursued following final judgment.”° But Judge Bolton held

* Exh. 1, Jan. 17, 2006 Order at 3, lines 12-14, 17-19 (citations

omitted).

* Exh. |, Jan. 17, 2006 Order at 3, \ines 12-14, 17-19 (citations

omitted).

® Exh. 2, Feb. 24, 2006 Order at 2, lines 24-25; 3, lines 1-3

(citations omitted).

37a

that she could not certify the matter for an interlocutory

appeal, because she concluded that the case’s resolution would

not be materially affected by being in federal court as opposed

to state court.

Still, at a February 27, 2006 hearing, Judge Bolton

strongly encouraged Plaintiffs to pursue this matter with the

Ninth Circuit:

I would love it if the Ninth Circuit would address

the issue so that we would know, once and for all...

I would love it if they would. It didn’t seem to be one

of the standards upon which I was supposed to certify

an interlocutory appeal.

So we didn’t, but if you want to pursue it, | would

certainly encourage you to do so, because the Ninth

Circuit, | think, can apply whatever standard they

think is appropriate even it it’s a little different from

the one we’re required to follow.

But I don’t see any reason, while you’re discussing all

of that and determining whether you want to do that,

to hold up the proceedings with this case, because

even if the Ninth Circuit takes a look at it, what is

done between now and when they may decide whether

to take to case or not will be useful whether you’re

litigating here or back in state court.’

Because of an avalanche of work on other matters,

Plaintiffs’ counsel is only just now able to file this Petition.

’ Exh. 3, Reporter’s Transcript of Proceedings at 5-6 (emphasis

added)(Feb. 27, 2006).

38a

Discovery is underway, but the district court has not been

asked to make any substantive rulings, so the issue of where

this case should be litigated - whether in state or federal court

- has not been precluded or affected by any substantive rulings

by the district court. The issue is a key legal and procedural

matter that is ripe for decision.

C. The standard of review.

The writ of mandamus is an extraordinary remedy.* The

Ninth Circuit has a five-factor test that it uses to evaluate the

propriety of a writ of mandamus under 28 U.S.C. §1651:

(1) Petitioner has no other adequate means, such as a

direct appeal, to attain the desired relief.

(2) Petitioner will be damaged or prejudiced in a way not

correctable on appeal.

(3) The district court’s order is clearly erroneous as a

matter of law.

(4) The district court’s order is an often-repeated error, or

manifests a persistent disregard of the federal rules.

(5) The district court’s order raises new and important

problems, or issues of law of first impression.”

* Kerr v. United States District Court for the Northern District of

California, 426 U.S. 394, 402 (1976).

° Bauman v. United States District Court for the Northern District

of California, 557 F.2d 650, 654-55 (9th Cir. 1977).

39a

Of the five factors, “it is clear that the third factor, the

existence of clear error as a matter of law, is dispositive.”'”

THE ISSUE

In removal cases, does the Ninth Circuit Court of Appeals

follow the “first-served” defendant rule or the “last-served”

defendant rule?

LEGAL ARGUMENT

A. This Court should accept the writ of mandamus

because it presents an extra-ordinary case where

circuit-wide guidance is needed.

“Existence of a clear error as a matter of law” is the

dispositive factor for evaluating a petition for writ of

mandamus.'' This case is extra-ordinary because there is a

“Yes” or “No” answer that only this Court can give. In

removal cases, does the Ninth Circuit Court of Appeals follow

the “first-served” defendant rule or the “last-served”

defendant rule?

If the Ninth Circuit follows the “first-served” defendant

rule, then the district court committed clear error as a matter

' Calderon v. United States District Court for the Northern

District of California, 134 F.3d 981, 984 (9th Cir. 1998) (quoting

Executive Software North America, Inc. v. United States District

Court for the Central District of California, 24 F.3d 1545, 1551

(9th Cir. 1994)).

"' Burlington Northern & Santa Fe Railway Co. v. United States

District Court for the District of Montana, 408 F.3d 1142, 1146

(9th Cir. 2005).

40a

of law, and this case should be remanded to Maricopa County

Superior Court, State of Arizona. On the other hand, if the

Ninth Circuit follows the “last-served” defendant rule, then

the district court committed no error of law, and this case

should stay in federal district court.

Only the Ninth Circuit can say which is right and which

is wrong.

This is also an extra-ordinary case because refusing to

take the writ of mandamus would simply leave the issue up in

the air - which would be a huge disservice to the lawyers and

judges working in the Ninth Circuit. That is, if the Ninth

Circuit believes that the “last-served” defendant rule is

correct, and declines to publish an opinion adopting that

position, then the uncertainty on this elusive, important legal

problem will simply continue. Thus, this is a rare situation

when doing nothing would not only be unhelpful for the

Plaintiffs - it would also be unhelpful for the entire Ninth

Circuit.

Plaintiffs believe that the “first-served” defendant rule

matches the removal statute and process most closely and

should be recognized as the correct rule in the Ninth Circuit.

But right or wrong, the issue is one that has eluded a

definitive answer in the Ninth Circuit for decades. Plaintiffs

thus respectfully ask that the Court clarify this matter for the

entire Ninth Circuit, even if that clarification goes against

their effort to have this case returned to Arizona state court.

B. This Court should accept the writ of mandamus

because the district court committed clear legal error.

The district court in this case failed to follow the “first-

served” defendant rule, which is the fairest rule, the apparent

4la

majority rule,'’ and the one that this Court should therefore

recognize as the proper rule for the Ninth Circuit.

We start the analysis with the removal process. A

defendant may remove a state civil case to federal court if

there is diversity or federal question jurisdiction. 28 U.S.C.

§ 1441(a) & (b). But the defendant must comply with the

removal rules found in 28 U.S.C. § 1446(b), the first

paragraph of which requires a defendant to file a notice of

removal within thirty 30 days after receiving notice of a

complaint revealing diversity or a substantial federal question.

And when there are multiple defendants, all defendants must

join in the removal petition. The Supreme Court adopted this

“unanimity rule” over a century ago.'’ Now, all federal courts

follow the unanimity rule in regular removal cases."

Under the unanimity rule, any one defendant may prevent

a case from being removed. Ifa defendant’s removal notice

fails to meet the timeliness or unanimity requirements of 28

U.S. C § 1446(b), the district court may remand the action

'* United Computer Systems, Inc. v. AT & T Corp., 298 F.3d 756,

762 (9th Cir. 2002) (The “first-served” defendant rule “has been

apparently adopted by the majority of courts that have addressed

this issue.”).

'> See, e.g., Chicago, Rock Island & Pacific Railway Co. v.

Martin, 178 U.S. 245, 248 (1900).

'" See, e.g.,Prize Frize, Inc. v. Matrix (U.S.) Inc., 167 F.3d

1261, 1266 (9" Cir. 1999): Parrino v. FHP, Inc., 146 F.3d 699,

703 (9th Cir. 1998). Congress recently abrogated the “unanimity

rule” for certain class action lawsuits. See Abrego Abrego vy. The

Dow Chemical Co. , 2006 WL 864300 (9th Cir. April 4, 2006). But

that change does not affect he present case, which is not a class

action.

42a

upon a plaintiff's timely motion.'’ Courts strictly construe

removal statutes against removal jurisdiction. Any doubt is

resolved in favor of remandiug the case.'° Indeed, “strict

construction is especially warranted in diversity cases, where

concerns of comity mandate that state courts be allowed to

decide state cases unless the removal action falls squarely

within the bounds Congress has created.”

As noted, the majority of courts have held that the thirty-

day removal period begins to run for all defendants on the

date the first defendant receives the initial complaint. Courts

adopting the majority “first-served” rule have relied mainly

on three reasons:

¢ It inevitably flows from the unanimity rule;

e Forum selection should be resolved as early as

possible: and

¢ Removal statutes must be construed narrowly.

'S See 28 U.S.C. § 1447(c) (“A motion to remand the case on any

basis other than subject matter jurisdiction must be made within 30

days after the filing of the notice of removal under section

1446(a).”).

'© Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (“We

strictly construe the removal statute against removal jurisdiction.

Federal jurisdiction must be rejected if there is any doubt as to the

right of removal in the first instance.) (citations omitted).

' Horn v. Service Merchandise Co., Inc., 727 F. Supp. 1343,

1345 (N.D. Cal. 1990) (citation and internal quote marks omitted).

43a

First, under the unanimity rule, all defendants must join

a removal petition even though they have not received a copy

of the complaint.'* In fact, the failure of a defendant to move

for removal within the 30-day period is regarded as an

irrevocable choice not to remove. “To hold otherwise would

have the effect of extending the thirty-day limitation as

applied to that defendant for an indefinite period.”'? Looked

at from a different perspective, a defendant’s failure to

remove a case within thirty days operates as a waiver of the

fight to remove. Logically then, that defendant must be barred

from consenting to a later-served defendant’s removal notice,

or there would be no unanimity.”

Second, courts applying the majority rule have

emphasized the necessity that the forum selection should be

settled as early as possible. Indeed, Congress has specified

that, if removal does not occur within one year after

commencement of the action in state court, it cannot be

'® See Chicago, Reck Island & Pacific Railway Co. v. Martin, 178

U.S. 245, 248 (1900); Embury y. King, 361 F.3d 562, 563 n.1

((9th Cir. 2004) (consent of all defendants required for removal).

The only except» % the unanimity rule may be for parties who

are nominal, unknewn, or fraudulently joined. United Computer

Systems, Inc. v. AT& T Corp., 298 F.3d 756, 762-63 (9th Cir.

2002). That exceotion does not apply here.

' Transport Indemnity Co. v. Financial Trust Co., 339 F. Supp.

405, 409 (C.D. Cal. 1972).

*° Cantrell vy. Great Republic Ins. Co., 873 F.2d 1249, 1254 (9th

Cir. 1989) (Failure to remove within 30 days results in a waiver of

the fight to remove.).

44a

removed ever.2' One could view this as an inherent

repudiation of the logic of the last-served defendant rule,

which would sanction removal even if a defendant was served

over a year after commencement of the state-court action.

Third, the rule requiring narrow construction of removal

statutes supports the majority rule.”” Giving the first-served

defendant another chance to agree to removal each time

another defendant receives notice of the complaint creates a

rolling deadline that can repeatedly reopen, even when a new

defendant is added weeks or months after initial service on the

first-served defendant.

C. This Court should accept the writ of mandamus

because Plaintiffs have no other means, such as direct

appeal, to attain the desired relief.

Plaintiffs have no appeal-of-right from an order denying

a motion to remand. Judge Bolton declined to certify the case

for an interlocutory appeal, although, as noted above, she

stated that: “I would love it if the Ninth Circuit would

address the issue so that we would know, once and for all

*! 28 U.S.C. §1446(b). See also Bush v. Cheaptickets, Inc., 425

F.3d 683, 688-89 (9th 2005) (discussing the one-year removal

limit); Hill v. Blind Industries and Services of Maryland, 179

F.3d 754, 757 (9th Cir. 1999) (“Removal and remand are...

governed by strict time limits.”).

2 See, e.g., Brown v. Demco, Inc., 792 F.2d 478 482 (Sth Cir.

1986) (“[B]y restricting removal to instances in which the statute

clearly permits it, the rule is consistent with the trend to Innit

removal and with the axiom that the removal statutes are to be

construed against removal.”); Duncan v. Stuetzle, 76 F.3d 1480,

1485 (9th Cir. 1996).

45a

.... 1 would love it if they would. . . . [BJut if you want to

pursue it, I would certainly encourage you to do so.””

Because a direct appeal is blocked and an interlocutory appeal

is noi available, a petition for writ of mandamus is the only

way for the Plaintiffs to obtain relief from the district court’s

order denying their motion to remand.

D. This Court should accept the writ of mandamus

because Plaintiffs will be damaged or prejudiced in a

way not correctable on appeal.

Plaintiffs started this case in Arizona state court because

that is their right, because state court is Cemonstrably faster

and less-crowded, and because state court judges inherently

know more about issues of state law than does the federal

court, which can only “predict” what substantive state law

will be. On appeal, there is no way to correct any damage or

prejudice caused by excessive delays in federal district court

and by rulings on substantive matters that differ from the

rulings that a state judge would provide. No appeal can repair

these things.

E. This Court should accept the writ of mandamus

because the district court’s order is an often-repeated

error of law.

One of these rules is right; one of them is wrong. Within

the Ninth Circuit, many district courts follow the first-served

defendant rule’* and some district courts follow the last-

> Exh. 3, Reporter’s Transcript of Proceedings at 5-6 (emphasis

added) (Feb. 27, 2006).

* See, e.g., McAnally Enterprises, Inc. v. McAnally, 107 F.

Supp. 2d 1223 (C.D. Cal. 2000); Biggs Corp. v. Wilen, 97 F.

46a

served defendant rule.” The Ninth Circuit has traditionally

celebrated its diversity, but diametrically opposite results in

district courts within the Ninth Circuit on this simple issue is

not diversity, it is anarchy depriving one class of litigants of

the benefits of the correct rule of law - whatever the Ninth

Circuit declares that rule to be.

F. This Court should accept the writ of mandamus

because the district court’s order raises issues of law of

first impression - as far as the Ninth Circuit’s

resolution is concerned.

First-served defendant? Last-served defendant? What rule

to follow is an issue of first impression in the Ninth Circuit.

This is a fair opportunity to answer the question and provide

guidance for all judges and lawyers in the Ninth Circuit.

Supp. 2d 1040 (D. Nev. 2000); Teitelbaum yv. Soloski, 843 F.

Supp. 614 (C.D. Cal. 1994); Samura y. Kaiser Foundation Health

Plan, Inc., 715 F. Supp. 970, 971 (N.D. Cal. 1989); Pic-Mount

Corp. v. Stoffel Seals Corp., 708 F. Supp. 1113 (D. Nev. 1989);

Transport Indemnity Co. v. Financial Trust Co., 339 F. Supp.

405 (C.D. Cal. 1972); Morgan v. Asbestos Defendants (BHC),

2003 WL 945987 (N.D. Cal. Feb. 28, 2003);Ireland vy.

Checkerboard Square, LLC, 2005 WL 43995 (Magistrate D. Or.

Jan. 10, 2005), report and recommendation adopted by 2005 WL

372204 (D. Ore. Feb. 15, 2005); Innovacom, Inc. v. Haynes,

1998 WL 164933 (N.D. Cal. March 17, 1998); Bewley v. Cigna

Financial Advisors, 1997 WL 601426 (N.D. Cal. Sept. 23, 1997).

» See, e.g., Griffith v. Am. Home Prods., 85 F. Supp.2d 995, 999

(E.D. Wash. 2000); Ford vy. New United Motors Mfg., 857 F.

Supp. 707, 708-10 (N.D. Cal. 1994).

47a

CONCLUSION

The United States District Court of the District of Arizona

followed the “last-served” defendant rule and declined to

remand a case to Arizona state court. If that decision was

wrong, this Court should issue a writ of mandamus correcting

the error of law, and explaining that the “first-served”

defendant rule will be followed. On the other hand, if that

decision was right, this Court should at least accept

jurisdiction of this matter, and issue an opinion explaining

which that the “last-served” defendant rule will be followed.

Without published guidance, the district courts in the Ninth

Circuit will continue to flounder. That situation helps no one,

but can be easily corrected - by this Court.

DATED this 2nd day of May, 2006.

CHARLES M. BREWER, LTD.

/s/ David L. Abney

Charles M. Brewer

John D. Brewer

Dane L. Wood

David L. Abney

Attorneys for Petitioners

48a

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV05-1906-PHX-SRB

[Filed January 27, 2006]

LAWRENCE HOBBS, individually;

LAWRENCE and GLORIA HOBBS,

husband and wife; TYLER HOBBS,

JENNIFER HOBBS, and CHRISTINE

HOBBS, children,

Plaintiffs,

PACIFICORP, an Oregon Corporation;

PACIFICORP, L.L.C., a Delaware

Corporation; S.D. MYERS, INC.,

a foreign corporation; et al.,

Defendants.

Phoenix, Arizona

February 27, 2006

11:15 a.m.

REPORTER’S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE SUSAN R. BOLTON

UNITED STATES DISTRICT JUDGE

(RULE 16 SCHEDULING CONFERENCE)

49a

[pg. 5]

interlocutory appeal.

MR. WOOD: Yes, Your Honor.

THE COURT: Are you going to pursue it with the Ninth

Circuit, in any event?

MR. WOOD: I was out of the office Friday. We had a

matter down tn southern Arizona, and so the first opportunity

I had was this morning to read through it. We are going to

discuss it internally.

At this point, I don’t know. I suspect that it’s something

we’re going to look very seriously at and see if it’s -- because

as Your Honor had mentioned in the order, it is kind of an

illusive sort of issue in terms of, well, if we do proceed to

trial, then what object is served in terms of appealing it at that

time? And that would be our only rationale for doing so.

THE COURT: Well, I was looking for that in the

standards and didn’t find it. And that -- I would love it if the

Ninth Circuit would address the issue so that we would know,

once and for all, but the -- I would love it if they would. It

didn’t seem to be one of the standards upon which | was

supposed to certify an interlocutory appeal.

So we didn’t, but if you want to pursue it, I would

certainly encourage you to do so, because the Ninth Circuit,

1 think, can apply whatever standard they think is appropriate

even if it’s a little different from the one

50a

[pg. 6]

that we’re required to follow.

But I don’t see any reason, while you’re discussing all of

that and determining whether you want to do that, to hold up

the proceeding with this case, because even if the Ninth

Circuit takes a look at it, what is done between now and when

they may decide whether to take the case or not will be useful

whether you're litigating here or back in state court.

MR. WOOD: Yes, I agree, Your Honor. And | think

we'll probably make the decision here within the next ten

days.

THE COURT: So let’s take a look at the Rule 16

scheduling order. And you can fill this in with me. Obviously,

with the electronic file, as soon as this document is signed and

filed electronically, you'll also receive a copy of it

electronically.

And I’m starting on page 11 of your plan where you

address the first item here, which is the time for the

exchanging of initial disclosures. The parties have both agreed

that that date will be March 13, 2006.

My next item, paragraph D, Mr. Wood, do you wish to

have a deadline for any amendments to the complaint? And if

so, by what date would you like to make a decision whether

you need to amend?

MR. WOOD: We hadn't given any thought to that.

Sla

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV-05-1906-PHX-SRB

[Filed January 20, 2006]

LAWRENCE HOBBS individually;

LAWRENCE and GLORIA HOBBS,

husband and wife; TYLER HOBBS,

JENNIFER PORTILLO, and CHRISTINE

HOBBS, children,

Plaintiffs,

PACIFICORP, an Oregon corporation;

PACIFICORP, L.L.C., a Delaware

Corporation; S.D. MYERS, INC.,

a foreign corporation,

Defendants.

eee wee eee eee eee eee”

MOTION FOR CERTIFICATION OF

INTERLOCUTORY APPEAL

Pursuant to 28 U.S.C. § 1292 (b), Plaintiffs hereby

respectfully move the Court to certify - for an interlocutory

appeal - the January 17, 2006 Order declining to remand this

52a

case to state court. The reasons for this request appear in the

attached Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

A. The Court should certify this important issue for

interlocutory appeal.

Denial of a remand motion is ordinarily not immediately

appealabic. This case, however, offers a unique chance to

clarify a controlling issue of law on which there has been a

substantial ground for difference of opinion, and that has

ur fortunately eluded the Ninth Circuit’s resolution. In fact, as

this Court observed on Page 3 of its January 17, 2006 Order,

this is also an issue that has divided the district courts within

the Ninth Circuit and that has never before been considered in

the District of Arizona. Pages 3 and 6 of the January 17, 2006

Order also accurately highlighted the conflict between the

Fifth Circuit and the many district courts that follow the first-

served defendant rule - on the one hand - and the Sixth and

Eighth Circuits and the many district courts that follow the

later-served defendant rule- on the other hand. It is a murky

procedural muddle.

This Court’s comprehensive, well-researched, and well-

written January 17, 2006 Order which is already available

internationally on the Westlaw computer research system! -

addressed a complex and contentious legal problem that the

Ninth Circuit can and should resolve for all of the district

courts within tis vast coverage. While Plaintiffs disagree with

the January 17, 2006 Order, Plaintiffs concede that the Court

' See Hobbs v. Pacificorp, Slip Copy, 2006 WL 120325 (D. Ariz.

Sas 17, 2006).

53a

has judiciously and capably framed the issue and the conflict

for easy and prompt analysis and resolution by the Ninth

Circuit.

Even if an order is normally not appealable, 28 U.S.C.

§ 28-/292(b) allows a district judge to Certify that such an

order is appealable when the district judge is “of the opinion

that such order involves a controlling question of law as to

which there is substantial ground for difference of opinion

and that an immediate appeal from the order may

materially advance the ultimate termination of the

litigation.” Then, if the Ninth Circuit agrees it may, “in its

discretion, permit an appeal to be taken from such order, if

application is made to it within ten days after the entry of the

order.” 28 U.S.C. § 28-1292(b).

There will be no prejudice to the defendants by asking the

Ninth Circuit to consider taking this matter as an interlocutory

appeal. If the Ninth Circuit is not interested, it will promptly

act to deny any consideration of an interlocutory appeal. On

the other hand, if the Ninth Circuit is interested in this matter,

and chooses address this important issue, then defendants,

plaintiffs - and all other litigants across the Ninth Circuit -

will have the benefit of guidance from the Ninth Circuit on an

important issue of law and legal procedure.

B. Conclusion.

This Court’s clear, concise January 17, 2006 Order can

and should be the starting point for a circuit-wide clarification

of removal jurisprudence that will end the conflict among the

district courts in our circuit. Plaintiffs therefore respectfully

request that the Court enter an Order certifying its opinion

that the January 17, 2006 Order involves a controlling

question of law on removal jurisprudence as to which there is

54a

substantial ground for difference and that an immediate appeal

from the January 17, 2006 Order may materially advance the

ultimate termination of the iitigation. The Ninth Circuit can

then decide whether or not to accept the discretionary

interlocutory appeal.

DATED this 20" day of January, 2006.

CHARLES M. BREWER, LTD.

By /s/ Dane Wood

Dane L. Wood

5500 North 24" Street

Phoenix, Arizona 85016

Attorney for Plaintiffs

5Sa

APPENDIX H

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

No. CV 2005-1906-PHX-SRB

[Filed January 27, 2006]

LAWRENCE HOBBS, etal., _ )

Plaintiffs )

)

VS. )

)

PACIFICORP, et al., )

Defendants )

)

DEFENDANT PACIFICORP’S RESPONSE IN

OPPOSITION TO MOTION FOR CERTIFICATION

OF INTERLOCUTORY APPEAL

Summary of Argument

Correctly understood, the Motion for Certification would

have this Court certify for immediate appeal a

“comprehensive, well-researched, and well-written” order

merely because the plaintiffs disagree with it. [Motion at p.2]

Leaving aside that disagreement with a court’s ruling is

insufficient to justify an interlocutory appeal [United States

Rubber Co. v. Wright, 359 F.2d 784, 785 (9" Cir. 1966)], the

S6a

Motion should be denied for at least any of the following

reasons:

1. The Motion ignores the requirement that an

interlocutory appeal should be allowed “only in extraordinary

cases.” United States Rubber, 359 F.2d at 785.

2. The Motion fails to identify a “controlling issue of

law” that will speed the termination of this litigation. See

Mateo v. M/S Kiso, 805 F. Supp. 792, 800 (N.D. Cal. 1992).

3. The Motion, at least implicitly, concedes that what

was once characterized as “the dispositive case” [Plaintiff's

Reply in Support of Motion to Remand at p. | (citing

Schwartz v. FHP Corp., 947 F. Supp. 1354 (D. Ariz. 1996)}

has no applicability here, at all. And, the Motion fails to give

any explanation for disputing the Court’s conclusion that the

ruling here is compelled by, among other reasons, a regard

for what is fair given the facts of this case.

Reasons to Deny the Motion

It is settled-law in this Circuit that interlocutory appeals

are to be permitted only in extraordinary cases. United States

Rubbel, 359 F.2d at 785; see also United States v. Woodbury,

263 F.2d 784, 788 n.11 (9" Cir. 1959) ‘stating that section

1292(b) “is to be applied sparingly and only in exceptional

circumstances”). Other courts have agreed with the Ninth

Circuit’s conclusion that 28 U.S.C. § 1292(b) is not to be

used in ordinary cases. See Loritz v. CMT Blues, 271 F.

Supp.2d 1252, 1254 (S.D. Cal. 2003) (citations omitted).

Notwithstanding plaintiff's burden to demonstrate that this is

an extraordinary or exceptional case [see Coopers & Lybrand

v. Livesay, 437 U.S. 463, 474-75 (1978)]; the Motion not

only fails to meet that burden, it never tries. Other than a

S7a

speculative suggestion that, possibly, the Ninth Circuit may

be interested in looking at the issue of removal and the first-

served defendant rule at this time, a possibility that by no

reasonable standard turns this into an exceptional case, there

is no discussion anywhere in the Motion that meets or even

attempts to meet plaintiff's burden. Nor could there be: this

is a personal injury case, and “an ordinary personal injury

action which can be promptly determmed by Court and jury”

fails to meet the section 1292(b) standard as an extraordinary

case. Dalla v. Atlas Maritime Co., 562 F. Supp. 752, 759

(C.D. Cal. 1983), aff'd, 771 F.2d 1377 (9" Cir. 1985); see

also United States Rubber, 359 F.2d 784 (concluding that an

“uncertain question of law” in “unexceptional contract

litigation” fails to meet extraordinary case standard).

Beyond that, an interlocutory appeal is inappropriate

absent a controlling issue of law, the determination of which

will speed the termination of the litigation. Mateo, 805 F.

Supp. at 800. The Motion does not and cannot make that

showing. That is because, even if one assumes that the Ninth

Circuit were to disagree with this Court’s interpretation of the

removal statute and analysis of the first-served versus last-

served defendant rule, this matter would return to state court.

This litigation would not terminate. There is reason to believe

that, irrespective of how the Ninth Circuit may reach its

conclusion, the result would be the same, i.e., the denial of

the remand motion would be affirmed because, as explained

in PacifiCorp’s response to the remand motion, even when

applying the first-served defendant rule to the facts here,

remand is not warranted. But irrespective of how the Ninth

Circuit may rule, it cannot be disputed that the litigation

would not end. And when, as here, the requested

interlocutory appeal pertains te a ruling that merely

determines whether the litigation will proceed in federal or

state court, it is not a ruling involving an issue that, as

58a

required by section 1292(b), can be deemed to “materially

advance the ultimate termination of the litigation.” See

Spagnuolo v. Port Authority of New York and New Jersey, 245

F. Supp.2d 521,523 (S.D.N.Y. 2002).

Finally, the Court correctly concluded that, if plaintiffs’

interpretation of the removal statute (28 U.S.C. §1332) were

correct, it then follows that Congress established a procedure

granting all defendants a right to remove while at the same

time allowing plaintiffs a unilateral opportunity to deny

certain defendants that right. Just how such a result equates

with notions of fairness, especially here where removal was

accomplished at the very outset of the litigation and not

months or even years later, is something else that the Motion

does not and cannot explain.

Relief Requested

The Motion for Certification of Interlocutory Appeal

should be denied. January 27, 2006.

JENNINGS, STROUSS & SALMON, P.L.C.

By s/ Michael J. O’Connor

Michael J. O’Connor

The Collier Center- 11" Floor

201 East Washington Street

Phoenix, Arizona 85004-2385

Attorneys for Defendant PacifiCorp

59a

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV-05-1906-PHX-SRB

[Filed February 6, 2006]

LAWRENCE HOBBS individually;

LAWRENCE and GLORIA HOBBS,

husband and wife; TYLER HOBBS,

JENNIFER PORTILLO, and

CHRISTINE HOBBS, children,

Plaintiffs,

PACIFICORP, an Oregon corporation;

PACIFICORP, L.L.C., a Delaware

Corporation; S.D. MYERS, INC.,

a foreign corporation,

Defendants.

)

v. )

)

REPLY IN SUPPORT OF MOTION FOR

CERTIFICATION OF INTERLOCUTORY APPEAL

MEMORANDUM OF POINTS AND AUTHORITIES

60a

A. This “extraordinary” case deserves certification to

the Ninth Circuit.

This is an extraordinary - and opportune - case for an

interlocutory appeal. District courts within the Ninth Circuit

are sharply divided over what date-of-service rule to use in

removal cases. Some use the “first-served defendant” rule

while others use the “last-served defendant” rule. There is no

guidance from the Ninth Circuit; the United States Supreme

Court is silent on the issue; even the federal circuit courts

have reached no consensus. The reason for this lack of

guidance is not just the inevitable difference of opinion that

often plagues the law. Instead, it is probably the fact that,

while such cases often arise, they stubbornly evade appellate

review.

For litigants, it is probably too much bother to seek an

interlocutory appeal based on which date-of-service rule

should apply, despite the fact that remand is important to the

conduct and final outcome of such cases. After all, as this

Court knows from its extensive and distinguished experience

in the state and federal courts, there are practical, marked

differences in the ways that cases are litigated in the state and

federal courts, on such important matters as discovery

methods and limits, time to resolve the case, costs to the and

judicial resources.

What makes this case so “extraordinary” is the golden

opportunity to present this issue to the Ninth Circuit. If the

judges of the Ninth Circuit want to select a removal rule to

follow - as logic would require - then they can grant an

interlocutory appeal and provide critically needed help and

guidance to the district courts. If not, then the judges of the

Ninth Circuit can let us know that in very short order, and

that will be the end of the matter. Here, as in so many other

6la

legal matters, it does not hurt to ask, and may indeed

immensely advance the removal jurisprudence of the Ninth

Circuit.

In point of fact, the Ninth Circuit appears to routinely find

“extraordinary” circumstances in cases concerning the

allegedly improper denial of motions to remand. It has

allowed interlocutory appeals in a number of such cases.'

There is every reason to think that it would also do so in the

present case as well, where the circumstances are uniquely

compelling.

B. The choice of what removal rule to adopt is the

“controlling issue of law”.

The “controlling issue of law” that Plaintiffs ask the Ninth

Circuit to accept for an interlocutory appeal is what rule to

adopt: the “first-served defendant” rule or the “last-served

defendant” rule. After the many decades that the removal

process has been in existence, the Ninth Circuit has never had

an opportunity to choose between these antithetical rules,

' See, e.g., Sheeran v. General Electric Co., 593 F.2d 93, 97 (9th

Cir. 1979), cert. denied, 444 U.S. 868 (1979); Lee v. American

National Insurance Co., 260 F.3d 997, 1000 (9th Cir. 2001), cert.

denied, 535 U.S. 928 (2002); Sullivan v. First Affiliated Sec.,

Inc., 813 F.2d 1368, 1371 (9th Cir. 1987), cert. denied, 484 U.S.

850 (1987); ARCO Environmental Remediation, L.L.G v.

Department of Health and Environmental Quality of Montana,

213 F.3d 1108, LiL1, 1117-18 (9th Cir. 2000). Other circuit courts

similarly often allow interlocutory appeals from orders denying

motions to remand. See, e.g., City of Clarksdale v. BellSouth

Telecommunications, Inc., 428 F.3d 206, 208-10 (5th Cir. 2005);

Watson v. Philip Morris Companies, Inc., 420 F.3d 852, 854 (8th

Cir. 2005).

62a

apparently because no litigant was sufficiently interested to

ask for certification. Piaintiffs are, however, interested and

are willing to ask this Court to certify this matter for Ninth

Circuit consideration as an interlocutory appeal. This is a

divisive, contentious subject that should have been settled

long ago in the Ninth Circuit. While Plaintiffs disagree with

the January 17, 2006 Order, they admit that it could be hard

to find a more adept analysis of the law. The January 17,

2006 Order is the perfect springboard for an interlocutory

appeal, as long as the Ninth Circuit is willing to accept the

interlocutory appeal.

Determination of this controlling issue of law could

drastically speed the termination of this litigation. After all,

if the Ninth Circuit accepts the interlocutory appeal and

adopts the “last-served defendant” rule, this case will vanish

from the district court docket. That ts as speedy a termination

as any district court could want.

Indeed, the Ninth Circuit has specifically held that:

“Where a motion to remand is denied, the propriety of

removal is reviewable on appeal from the final judgment or by

interlocutory appeal if the refusal to remand is certified under

28 U.S.C. § 1292(b).”* In fact, in interlocutory appellate

proceedings, the Ninth Circuit will “review de novo the

district court’s order denying [a plaintiff's] motion to

remand.”°

? Sheeran y. General Electric Co., 593 F.2d 93, 97 (9th Cir. 1979)

(emphasis added), cert. denied, 444 U.S. 868 (1979).

* Lee vy. American National Insurance Co., 260 F.3d 997, 1000

(9th Cir. 2001), cert. denied, 535 U.S. 928 (2002).

63a

When it grants an interlocutory appeal concerning denial

of a motion to remand, the Ninth Circuit holds that the

“burden of establishing jurisdiction falls on the party invoking

the removal statute, which is strictly construed against

removal.”* And when the Ninth Circuit determines in an

interlocutory appeal that failure to remand is improper, it will

reverse the district court, thus terminating the case in the

federal system,’ and necessarily easing the district court’s

docket, which is an important consideration for any district

court.

The Spagnuolo’ district court case from New York is not

authority for the proposition that grant or denial of a remand

to state court would not materially advance the ultimate

termination of the litigation. The district judge in Spagnuolo

specifically held that the federal interests in the case would be

adequately protected in state court once the case was

remanded.’ In point of fact, of course, since the action in

Spagnuolo was remanded to state court, it ended in federal

court, so there was no concern about the case continuing in

federal court in any event. Even more important, the

discussion in Spagnuolo on the factors needed for an

interlocutory appeal is pure dictum, since, by statute, orders

* Sullivan y. First Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th

Cir. 1987), cert. denied, 484 U.S. 850 (1987) (citations omitted).

> ARCO Environmental Remediation, L.L.C. v. Department of

Health and Environmental Quality of Montana, 213 F.3d 1108,

1114, 1117-18 (9th Cir. 2000).

° Spagnuolo v. PortAuthority of N.Y. & N.J., 245 F. Supp. 2d

521 (S.D.N.Y. 2002).

” Spagnuolo, 245 F. Supp. 2d at 523.

64a

remanding a case to state court are not. appealable, unless the

case is a civil rights case.*

C. Conclusion.

This case is an excellent candidate for certification to the

Ninth Circuit. If the Ninth Circuit consents to take the

interlocutory appeal, it can establish what service rule will

apply in district courts within the Ninth Circuit. This Court’s

January 17, 2006 Order is a timely and extraordinary

opportunity. Plaintiffs thus respectfully move the Court to re-

issue the January 17, 2006 Order - to prevent any timeliness

issues - and to certify that re-issued Order for consideration

by the Ninth Circuit as an interlocutory appeal. Plaintiffs

would welcome the opportunity to discuss this matter at oral

argument with the Court, at its convenience.

DATED this 6". day of February, 2006.

CHARLES M. BREWER, LTD.

By /s/ Dane Wood

Dane L. Wood

5500 North 24" Street

Phoenix, Arizona 85016

Attorney for Plaintiffs

* See 28 U.S.C. § 1447(d) (“An order remanding a case to the

State court from which it was removed is not reviewable on appeal

or otherwise, except that an order remanding a case to the State

court from which it was removed pursuant to [28 U.S.C. § 1443 -

civil rights cases] shall be reviewable by appeal or otherwise.”).

65a

APPENDIX J

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CIV’05 1906 PHX SRB

[FILED June 23, 2005]

LAWRENCE HOBBS individually;

LAWRENCE and GLORIA HOBBS,

husband and wife; TYLER HOBBS,

JENNIFER PORTILLO, and

CHRISTINE HOBBS, children,

Plaintiffs.

PACIFICORP, an Oregon corporation;

PACIFICORP, L.L.C., a Delaware

Corporation; S.D. MYERS, INC., a

JOHN DOES and JANE DOES I-X; ABC

PARTNERSHIPS I-X, inclusive; and

BLACK CORPORATIONS I-X, inclusive,

Defendants.

)

VS. )

)

Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446,

defendants PacifiCorp and PacifiCorp, L.L.C. remove this

action, which is pending in the Arizona Superior Court

(Maricopa County).

56a

1. PacifiCorp, PacifiCorp, L.L.C., andS.D. Myers, Inc.

are defendants in a civil action in the Arizona Superior Court

(Maricopa County), case number CV2005-007544.

2. PacifiCorp and PacifiCorp, L.L.C. received copies of

the Alias Summons and First Amended Complaint on May 24,

2005, when served in Oregon, copies of which, along with

other filings from the state court, are attached as Exhibit A.

Defendant’s Notifice of Filing Notice of Removal in Federal

Court is attached as Exhibit B.

3. Plaintiffs in this action are residents of the State of

Arizona.

4. PacifiCorp is an Oregon corporation with its principal

place of business in Oregon. PacifiCorp, L.L.C. is a

Delaware limited liability company with its principal place of

business in Oregon. S.D. Myers, Inc. is a corporation duly

organized and existing under Ohio law.

5. This is a civil action between citizens of different

states and the amount in controversy as to each defendant,

exclusive of interest and costs, exceeds the jurisdictional

minimum.

6. Venue is proper in this district and division under 28

U.S.C. § 1441(a) because this district and division embraces

the place in which the removal action has been pending.

7. Defendant S.D. Myers has consented to the removal

of this action to this Court as shown by the Consent to

Removal submitted on its behalf and filed herewith.

8. A copy of this Notice has been filed with the State

Court Clerk.

June 23 , 2005.

JENNINGS, STROUSS & SALMON, P.L.C.

/s/

Michael J. O’Connor

Douglas Gerlach

The Collier Center, 11th Floor

201 East Washington Street

Phoenix, Arizona 85004-2385

Attorneys for Defendants PacifiCorp

and PacifiCorp, L.L.C.

APPENDIX K

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV05-1906PHX SRB

[Filed July 15, 2005]

LAWRENCE HOBBS individually;

LAWRENCE and GLORIA HOBBS,

husband and wife; TYLER HOBBS,

JENNIFER PORTILLO, and

CHRISTINE HOBBS, children,

Plaintiffs,

PACIFICORP, an Oregon corporation;

PACIFICORP, L.L.C., a Delaware

Corporation; S.D. MYERS, INC., a

foreign corporation,

Defendants.

)

V. )

)

MOTION FOR REMAND TO SUPERIOR COURT

Plaintiffs, by and through undersigned counsel, and in

accordance with 28 U.S.C. § 1447(c), hereby respectfully

request an Order remanding this lawsuit to the Superior Court

of the State of Arizona in and for the County of Maricopa.

69a

Remand to the Superior Court is warranted because

the Notice Of Removal (filed on June 23, 2005), is

untimely. The mandatory 30-day removal deadline,

prescribed by 28 U.S.C. § 1446(b), expired on June 12,

2005, because the first Defendant was served on May 13,

2005. See, e.g., Cantrell v. Great Republic Ins. Co., 873

F.2d 1249 (9" Cir. 1989); Schwartz v. FHP Int’l Corp. , 947

F.Supp. 1354, 1363 (D.Ariz. 1996).

This Motion is supported by the following Memorandum

Of Points And Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

I. RELEVANT FACTS

1. Nature of Lawsuit

This diversity-based lawsuit arises out of the catastrophic

bum injuries of 56-year old Lawrence Hobbs, a loving

husband and father of three (3) children. Mr. Hobbs suffered

catastrophic 2" and 3™ degree burn injuries as a result of a

transformer fire/explosion that occurred on May 8, 2003, due

to the alleged negligence and misconduct of Defendants.

The transformer fire/explosion occurred at the Cholla

Power Plant in Joseph City, Arizona. Mr. Hobbs was a

technician at the Cholla Plant employed by APS. Mr. Hobbs

was simply walking near Unit 4 when it suddenly exploded

without any warning. He was badly burned by hot transformer

oil that erupted from the unit.

Defendant Pacificorp owns the Cholla Plant. Defendant

S.D. Myers is an outside contractor who had been servicing

Unit 4 that exploded.

70a

2. Procedural Facts

This lawsuit was filed on May 5, 2005, in the Maricopa

County Superior Court under Case No. CV 2005-007544. The

Original Complaint was served as follows:

Defendant Date of Service of Summons

& Complaint

S.D. Myers May 13, 2005

Pacificorp L.L.C. May 16, 2005

More than 30 days after Defendant S.D. Myers was

served, S.D. Myers filed (on June 23, 2005), its

Consent/Joinder to the Notice Of Removal that was filed by

Defendant Pacificorp on that same day.

Shortly after the Original Complaint was served upon each

Defendant, Plaintiffs were informed the true name for

Defendant Pacificorp L.L.C. was actually “Pacificorp,” an

Oregon Corporation. Due to the incorrect naming, and solely

for that reason, Plaintiffs filed an Amended Complaint on

May 20, 2005. The Amended Complaint contained no new

theories. The Amended Complaint was served upon

Defendant Pacificorp on May 24, 2005, and upon Defendant

S.D. Myers on May 25, 2005.

Il. LEGAL ANALYSIS

As discussed below, the removal statutes are narrowly and

strictly construed against removal. All doubts are resolved in

favor of remand. Pursuant to 28 U.S.C. § 1446(b), the

deadline to file a Notice Of Removal expires THIRTY (30)

Tla

days after service of the Complaint. The deadline is

mandatory.

Here, the Notice Of Removal was erroneously filed

FOURTY-ONE (41) days after the original Complaint was

served. Thus, the removal was filed ELEVEN (11) days past

the mandatory 30-day deadline, because the Complaint was

served on May 13, 2005, and the Notice of Removal was not

filed until June 23, 2005.

As demonstrated below, the lawsuit should be summarily

remanded due to the untimely Notice Of Removal.

1. Standards For Removal

Removal is not favored by the Federal Court system. It is

the longstanding principle that removal statutes are to be

narrowly and “strictly construed against removal.” See

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09,

61 S.Ct. 868, 872, 85 L.Ed. 1214 (1914).

The burden to remove the case to Federal Court is placed

upon the party seeking removal to establish all the

requirements of the removal statutes. Smith v. Voss Oil Co.,

166 F.Supp. 905, 907 (D.Wyo. 1958). A case “should not be

removed if there is doubt as to the right of removal.” Jd.

The right to removal exists only where Congress has so

designated. Smith, 166 F.Supp. at 906.

Thus, it is hornbook law that the “removal statutes ‘are

to strictly construed against removal and all doubts should

be resolved in favor of remand.’” Boyer v. Snap-on Tools

Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498

U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991). Simply

put, the removal statutes “must be construed in favor of

72a

state court jurisdiction.” McHugh v. Physicians Health Plan

of Greater St. Louis, Inc. , 953 F.Supp. 296 (E.D.Mo. 1997).

It is further well-established that the “removing party

bears the burden of establishing the propriety of removal.”

Groh v. Groh, 889 F.Supp. 166, 169 (D.N.J. 1995). The

“burden of establishing federal jurisdiction rests on the

party seeking removal.” Wilson v. Republic Iron & Steel

Co. , 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921);

Miller v. Grgurich, 763 F.2d 372, 373 (9" Cir. 1985);

Salverson v. Western States Bankcard Ass’n, 731 F.2d 1423,

1426 (9" Cir. 1984).

It has further been held by this District that the

“defendant also has the burden of showing that it has

complied with the procedural requirements for removal.”

Schwartz v. FHP Int'l Corp., 947 F.Supp. 1354, 1360

(D.Ariz. 1996).

2. The Mandatory 30-Day Deadline For Removal

The removal statute contains an explicit 30-day deadline

for removing a civil action.

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.

28 U.S.C. § 1446(b).

73a

The failure to file a removal notice within the 30-day

deadline can, alone, serve as a sufficient basis for remand.

Foster v. Mutual Fire, Marine & Inland Ins. Co. , 986 F.2d.

48, 50-53 (3d Cir. 1993).

Consistent with the longstanding concept that the removal

statutes are to be “narrowly and strictly construed,” federal

authorities are in accord that compliance with the 30-day

deadline is “mandatory.” See, e.g., United States ex rel.

Walker v. Gunn, 511 F.2d. 1024, 1026 (9"Cir.), cert. denied,

423 U.S. 849, 96 S.Ct. 91, 46 L.Ed.2d 72 (1975); Krantz v.

Boneck, 599 F.Supp. 785, 786 (D.Nev. 1984). See generally,

14C Wright & Miller & Cooper, Federal Practice and

Procedure, § 3732 at p. 324.

4. The Mandatory 30-Day Removal Deadline Runs

From The Date The First Defendant Is Served

Evidently, Defendants will request this Court to disregard

the “first-served” defendant rule (adopted in the District

Court of Arizona and the “majority rule” in the Federal Court

system) - a rule holding that the mandatory 30-day removal

deadline begins to run from the date the first defendant is

served. Under the rule, a later-served defendant is barred

from removing the case if an earlier-served defendant missed

the mandatory 30-day removal/joinder deadline.

It is the rule in the District Court of Arizona, the

prevailing rule in the Ninth Circuit, and the “majority

rule” in the Federal Court system that the mandatory 30-

day removal deadline runs from the date the first

defendant is served. This rule is known as the “first-served”

defendant rule. The District Court of Arizona adopted the

majority “first-served” defendant rule nearly a decade ago.

The Honorable Roslyn O. Silver delivered the opinion:

74a

Pursuant to 28 U.S.C. § 1446(b), the time for filing

the notice of removal begins to run on the date the

first defendant receives a copy of the complaint,

through service or otherwise.

Schwartz v. FHP Int’l Corp., 947 F.Supp. 1354, 1363

(D.Ariz. 1996).

Judge Silver could not have been any more precise. In

Schwartz, remand was ordered because a co-defendant failed

to join in the removal within 30-days of the time that it had

received notice of the lawsuit. Just as in Schwartz, Defendant

S.D. Myers, in this lawsuit, failed to file a joinder in the

removal (or its own notice of removal) within 30-days from

the time it had been served. As a consequence, the controlling

Schwartz decision compels that this lawsuit be remanded as

well.

It is of significance that Schwartz heavily relied upon the

decision of Teitelbaum v. Soloski, 843 F.Supp. 614 (N.D.Cal.

1994). Like Schwartz, the Teitelbaum case adopted the “first-

served” defendant rule which requires joinder in the removal,

by all served defendants, from the date the first defendant

is served:

Because all defendants must join, the 30-day period

for removal commences to run from the date the

first defendant receives a copy of the complaint.

Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5" Cir.

1986); Transport Indem. Co. v. Financial Trust Co.,

339 F.Supp. 405 (C.D.Cal. 1972).

Teitelbaum, 843 F.Supp. at 615.

75a

As quoted in the foregoing excerpt, Teitelbaum relied

upon the Ninth Circuit case of Transport Indemnity Co. v.

Financial Trust Co., 339 F.Supp. 405 (C.D.Cal. 1972). The

Transport Indemnity Co. case decided over thirty years ago

held that a later-named defendant is barred from removing if

an earlier named defendant failed to comply with the 30-day

removal deadline:

If, as I have heretofore found, failure of a defendant

to move for removal within the thirty-day period is

equivalent to a decision not to remove, I conclude

that such decision is irrevocable. To hold otherwise

would have the effect of extending the thirty-day

limitation as applied to that defendant for an indefinite

period during which other defendants not originally

served are found and served.

Transport Indemnity Co., 339 F.Supp. at 409.

Just as adopted by the District Court of Arizona, the

“first-served” defendant rule is the “majority rule” in the

Federal Court system. As commented by one District Court

located in the Ninth Circuit:

The Ninth Circuit has not yet addressed the issue. The

majority of courts have held that the thirty-day

removal period begins to run for all defendants on

the date the first defendant receives the initial

complaint - the ‘first served’ rule. See Olsen v.

Foundation Health Plan, et al., 1999 WL 390842, at

* 2 (N.D.Cal. June 11, 1999); see, e.g., Brown v.

Demco, Inc., 792 F.2d 478 (5" Cir. 1986) (applying

‘first served’ rule); Jnnovacom, Inc. v. Haynes, et al.,

1998 WL 164933 (N.D.Cal. March 17, 1998) (same):

Weimer v. City of Johnstown, 931 F.Supp. 985

76a

(N.D.N.*% ‘996) (same); Teitelbaum v. Soloski, 843 -

Sons, Inc. v. Continental Casualty Co., 805 F.Supp.

479, 482 (E.D.Ky. 1992) (same); Transport Indemnity

Co. v. Financial Trust Co., 339 F.Supp. 405

(C.D.Cal. 1972) (same).

McNally Enterprises, Inc. v. McNally, 107 F.Supp.2d 1223,

1226 (C.D.Cal. 2000).

In McNally, it was held that the defendant who was added

in an amended complaint did not have the right to remove the

case since the originally named defendant failed to remove

within thirty days:

Turning to the facts of this case, this Court finds the

reasoning of the courts following the majority rule

to be more persuasive, especially in light of the rule

requiring removal statutes to be construed

narrowly. In the instant action, because federal

jurisdiction here is based on diversity, concerns of

comity favor construing the removal statutes even

more narrowly.

McNally Enterprises, Inc., 107 F.Supp.2d at 1229.

Equally on point in the Ninth Circuit (Nevada), Biggs

Corp. v. Wilen, 97 F.Supp.2d 1040 (D.Nev. 2000), equally

barred removal by a later-named defendant.

It is the determination of this court that the better rule

is the one espoused by the Fifth Circuit and this

court several years ago in Pic-Mount that the 30-

day period for removal commences upon service of

the first defendant. First, removal statutes are to be

Tla

strictly construed. The party invoking the removal

jurisdiction of federal courts bears the burden of

establishing federal jurisdiction over the state court

suit. [citation omitted] Moreover, because the effect of

removal is to deprive the state court of an action

properly before it, removal raises significant

federalism concerns [citation omitted], which mandate

strict construction of the removal statute [citation

omitted]. As a result, courts are to resolve doubts

concerning removability in favor of remanding the

case to state court. See id.

In addition, there is nothing inequitable about

requiring the first-served defendant to file its notice

of removal within its 30-day removal period.

Biggs Corp., 97 F.Supp.2d at 1045.

Thus, under the “first-served” defendant rule adopted by

Schwartz, supra, Teitelbaum, supra, Transport Indemnity

Co., and the “majority” of circuits in the Federal Court

system, joinder of all co-defendants must occur within 30

days from the date the first defendant is served. Removal

statutes are narrowly and strictly construed. All doubts are

resolved against removal. The deadline is mandatory.

In this lawsuit, the first Defendant served was Defendant

S.D. Myers on May 13, 2005. Thus, Defendant S.D. Myers

had 30-days - until June 12, 2005 (and no later) - to join ina

Notice Of Removal or file its own removal. Defendant S.D.

Myers did not file its joinder in the removal until June 23,

2005.' Consequently, it is self-evident that removal is

' Defendant Pacificorp, L.L.C. appears to be represented by the

same counsel as Pacificorp. However, defense counsel for

78a

absolutely barred here because the joinder by Defendant S.D.

Myers was ELEVEN (11) days too late. A late joinder cannot

be used to circumvent the missed deadline.

It is further well to consider that the first-served

Defendant in this lawsuit (S.D. Myers) plainly had no

intention of removing this case to Federal Court. First,

Defendant S.D. Myers never filed a Notice Of Removal

within thirty days. Second, Defendant S.D. Myers proceeded

to actively litigate this lawsuit in the Superior Court by filing

an Answer and concurrently serving a Request For

Production, Non-Uniform Interrogatories, and Uniform

Interrogatories upon Plaintiffs (attached as Exhibit “A”). The

Answer and the Discovery served by Defendant S.D. Myers

occurred before it joined in the Notice Of Removal.

In light of the foregoing facts and authorities, Plaintiffs

respectfully submit that remand is warranted.

5. An Amended Complaint Does Not Re-Start The 30-

Day Removal Deadline

Plaintiffs are further informed that Defendants may

contend that the mandatory 30-day deadline was somehow

extended because Plaintiffs filed and then served an Amended

Complaint.

It has long been the rule in the Ninth Circuit that the

filing and serving of an Amended Complaint does not

restart the 30-day deadline for removal provided the

Pacificorp and Pacificorp, L.L.C. stresses that the entities are

unrelated and he really does not represent Pacificorp, L.L.C. If

that is true, then there is no valid “joiner” in the removal by

Defendant Pacificorp, L.L.C.

79a

original Complaint was removable. Cantrell v. Great

Republic Ins. Co. , 873 F.2d 1249 (9" Cir. 1989).

In Cantrell the defendant named in the original complaint

failed to remove within the 30-day deadline. The amended

complaint added a new defendant who filed a notice of

removal, which was joined by the first defendant. No new

theories were alleged in the amended complaint. The Ninth

Circuit Court of Appeals reversed the denial of the motion for

remand:

There is nothing about the addition of a party

plaintiff or defendant in the context of this action

that either creates federal jurisdiction or makes the

fact of federal jurisdiction newly ascertainable.

* * *

Accordingly, appellees lost their opportunity to

remove the case when they failed to file a petition

for removal within thirty days of the filing of the

original complaint.

Cantrell, 873 F.2d at 1255, 1256.

Cantrell ts on “all fours” here and should be applied to

remand this case.

Equally on point within the Ninth Circuit is the case of

Samura v. Kaiser Foundation Health Plan, Inc. , 715 F.Supp.

970, 971 (N.D.Cal.- 1989) “iit which it was held that a later-

added defendant was barred from removing the case due to

the fact that an earlier-served defendant failed to remove

within the thirty-day deadline.

80a

An excellent discussion of this rule is also found

Henderson v. Holmes, 920 F.Supp. 1184 (D.C.Kan. 1996).

A leading treatise on Federal Practice and Procedure also

contains the following excerpt:

Thus an amendment of the complaintt will not revive

the period for removal if a state court case previously

was removable but the defendant failed to exercise his

right to do so; the result will be the same when any

other changes in the case occurs or any paper is

interposed revealing a ground for removal to federal

court that was previously palpable or ascertainable but

was not invoked by the defendant.

Wright, Miller & Cooper, Federal Practice and Procedure:

Jurisdiction 3d § 3732 at p. 318 (and authorities listed

therein, including Cantrell, supra).

Based on the foregoing authorities, it is self-evident that

the Amended Complaint in this lawsuit does not re-start the

deadline for removal, especially since the original Complaint

was perfectly removable by Defendant S.D. Myers if it

wanted to, and the Amended Complaint added no new

theories.

CONCLUSION

Based on well-settled authorities in the District Court of

Arizona and throughout the Ninth Circuit, removal is barred

if the Notice of Removal is filed more than thirty (30) days

after the first defendant is served. The 30-day removal

deadline prescribed 28 U.S.C. § 1446(b) is mandatory and is

to be narrowly and strictly construed, with all doubts resolved

in favor of remanding to state court. The filing of an amended

8la

complaint (with no new theories) does not restart the 30-day

deadline.

Here, Defendant S.D. Myers was served on May 13,

2005. Consequently, the 30-day deadline to remove expired

on June 12, 2005. The Notice Of Removal was untimely

because it was filed on June 23, 2005 (ELEVEN (11) days

past the deadline).

In accordance with the foregoing, Plaintiffs respectfully

request this Court enter an Order remanding this case to the

Maricopa County Superior Court. Plaintiffs further request

attorneys fees and costs pursuant to 28 U.S.C. § 1447(c).

DATED this 15" day of July, 2005.

CHARLES M. BREWER, LTD.

By /s/ Dane Wood

Dane L. Wood

5500 North 24" Street

Phoenix, Arizona 85016

Attorney for Plaintiffs

APPENDIX L

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CV 2005-1906-PHX-SRB

[Filed August 1, 2005]

LAWRENCE HOBBS, individually;

LAWRENCE and GLORIA HOBBS,

husband and wife; TYLER HOBBS,

JENNIFER PORTILLO and

CHRISTINE HOBBS, children,

Plaintiffs,

VS.

PACIFICORP, an Oregon corporation;

PACIFICORP, L.L.C., a Delaware

corporation; S.D. MYERS, INC., a foreign

corporation; JOHN DOES and JANE

DOES I-X; ABC PARTNERSHIPS I-X,

inclusive; and BLACK CORPORATIONS

I-X, inclusive,

Defendants.

New eee ee eee eee Se”

PACIFICORP’S RESPONSE IN OPPOSITION

TO MOTION TO REMAND TO SUPERIOR COURT

83a

I. INTRODUCTION

PacifiCorp respectfully opposes Plaintiffs’ motion to

remand and requests that this Court deny the motion and

retain jurisdiction of this properly removed diversity matter.

Plaintiffs’ motion incompletely sets forth the federal and legal

fi’amework to rule on this remand motion. In fact, Plaintiffs’

motion:

(a) ignores the material chronology of events (the removal

and joinder were both filed within 30 days of the

operative complaint); and

(b) apply the so-called “first-served defendant rule” even

though it is not necessary under the specific facts in

this case,” thus:

(i)

(ii)

(itt)

ignoring that this Court is not bound by any

applicable case authority to apply the first-

served defendant rule [e.g., Griffith v.

American Home Prods. Corp, 85 F.Supp.2d

995, 1000-01 (E.D. Wash. 2000) (concluding

that the Ninth Circuit has not adopted the first-

served defendant rule)];

ignoring the policy reasons that, here, militate

against application of the “first-served

defendant rule” [see e.g., discussion in Ford v.

New United Motors Mfg., 857 F. Supp. 707,

709-10 (N.D. Cal. 1994)]; and

ignoring that, for fairness reasons, the modern

trend is away from the first-served defendant

rule [16 James Wm. Moore, Moore’s Federal

Practice, § 107.05 at 107-28 (3d ed. 2005)

84a

(“[I]n the context of multiple defendants, the

trend is to permit each defendant 30 days in

which to remove” )}.

As set forth below, under the particular facts of this case,

this Court need not decide whether to adopt the first-served

defendant rule, a rule that has not been adopted in Arizona or

the Ninth Circuit, because procedurally, the removal to

federal court was appropriate and should stand. Because

Plaintiffs filed an amended complaint prior to any answers,

the 30-day removal deadline did not begin until Plaintiffs

served the Defendants with the amended complaint. Plaintiffs’

Cases stating generally that amended complaints do not “re-

start” the deadline for removal thus are easily distinguishable.

Moreover, even if the Court were to consider the first-served

defendant rule, it should not grant Plaintiffs’ motion to

remand. Plaintiffs ask this Court to adopt the rule without the

slightest hint of prejudice to Plaintiffs if the removal stands

(because no prejudice exists), and without regard for how the

first-served defendant rule would penalize the later-served

defendant, which here is PacifiCorp. Plaintiffs’ motion urges

application of the rule as if it were an iron law, to be applied

mindlessly, which it is not. There is no Arizona authority

which dictates the use of the first-served defendant rule, nor

any authority that would dictate its use under the particular

facts of this case. Accordingly, Plaintiffs’ motion should be

denied. '

' Plaintiffs’ also assert that the case should be remanded to state

court because not all Defendants joined. However, case law is clear

that if a “nominal, unknown, or fraudulently joined” party is

named, failure of that party to join in removal will not defeat the

motion. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 (9th

Cir. 1988). Here, PacifiCorp L.L.C. is even less than a nominal

party because it is not related in any way to PacifiCorp and has

85a

Il. PACIFICORP’S MOTION TO REMOVE WAS

TIMELY FILED IN LIGHT OF THE FACT THAT

NO-ACTION OCCURRED BY ANY DEFENDANT

UNTIL THE AMENDMENT WAS SERVED

Plaintiffs’ motion omits the material events that fully

discuss the timeliness of removal. The table below identifies

all events in this action that are relevant.’

Date Event

May 5 Complaint filed

May 13 Service on defendant Myers

May 20 Amended complaint filed

May 24 Service of amended Complaint on

PacifiCorp

absolutely nothing to do with this matter. See Affidavit of John

Marshall Monson (July 28, 2005) (Exhibit A). Plaintiffs have been

provided documentation that PacifiCorp L.L.C. is not related to

PacifiCorp. Despite several correspondences with Plaintiffs

regarding this issue, they have yet to voluntarily dismiss PacifiCorp

L.L.C. from this action. See Affidavit of Michael J. O’Connor

(July 29, 2005) (Exhibit B).

* PacifiCorp L.L.C. was a Defendant named in both the original

and amended complaints, and apparently service was at least

attempted on PacifiCorp L.L.C. It is important to note, however,

that PacifiCorp L.L.C. is not related to Defendant PacifiCorp and

is, instead, a shell corporation created by a Texas resident that has

never been used. See Monson Affidavit. As such, service on

PacifiCorp L.L.C. has no bearing on the removal/remand issues

here because PacifiCorp L.L.C. has nothing to do with this case.

86a

May 25 Service of amended complaint on Myers

June 20 Answer filed by Myers to original (void)

complaint

June 23 Removal by PacifiCorp, jomed by Myers

June 29 Answer filed by PacifiCorp

June 29 Answer filed by Myers to Amended

Complaint

As discussed more fully below, Plaintiffs’ support for the

proposition that an amended complaint does not re-start the

30-day removal deadline differs drastically from the facts of

this case. In those cases, defendants actively litigated in state

court until months or years later when a new defendant was

added through an amended complaint and sought to remove

the action to federal court. The rationale is that the first-

served defendant should not get to see how his case is fairing

in state court and then much later decide to remove it to

federal court and start over. In those cases supporting

Plaintiffs’ position, the first-served defendant had been

actively litigating in state court for a considerable time before

the new defendant sought removal. For example, in Cantrell

v. Great rep. Ins. Co., 873 F.2d 1249 (9th Cir. 1989), the

court would not allow a new defendant to remove the case to

federal court when it was added two years after the first

defendant was served with the original complaint in a case

that the original defendant had been actively litigating in state

court. Similar results have been obtained in other cases cited

by Plaintiffs including McAnally Enter., Inc. v. McAnally,

107 F.Supp.2d 1233 (C.D. Cal. 2000) (holding that a new

defendant added 20 months after the case had been actively

litigated in state court by the first-served defendant could not

87a

remove the case); Brown v. Demco, Inc., 792 F.2d 478 (Sth

Cir. 1986) (remanding case to state court where first served

defendant had been actively litigating the case in state court

for four years before new defendant was added and attempted

removal); Samura v. Kaiser Foundation Health Plan, Inc.,

715 F. Supp. 970 (N.D. Cal. 1989) (removal not timely when

first served defendant had actively litigated the case in state

court for seventeen months prior to adding a new defendant

who sought removal). The facts supporting remand to state

court for failure to timely remove in all of these cases are

clear: these courts did not allow defendants to re-start the 30-

day removal deadline when the case was (1) already actively

litigated in state court, (2) for a considerable period of time.

In the present case, the initial complaint was filed against

Myers and PacifiCorp L.L.C., a company with absolutely no

relationship to PacifiCorp. Within days, and most

importantly, prior to an answer as allowed under Rule 15

A.R.C.P., Plaintiffs filed their amended complaint. At the

time the amended complaint was filed, there was no active

litigation occurring in state court. No party had answered the

complaint and no actions were taken to further the litigation.

PacifiCorp, after being properly named and served with the

now operative amended complaint, removed the matter to

federal court based on diversity jurisdiction by June 23, 2005,

less than thirty days after it had been served. Because there

was no active litigation in state court and the new defendant,

PacifiCorp, was added before any litigation in state court

began, it follows that the 30 days allowed for removal began

running not from the date that the original complaint was

filed, but rather, from the date that PacifiCorp and Myers

were served with the amended complaint.

This result is consistent with Rule 15 A.R.C.P. Here, it

is undisputed that Plaintiffs’ amended complaint was

88a

substituted for the original prior to any appearance by a

Defendant. This substituted amendment supersedes Plaintiffs’

original complaint. See e.g., Sacramento Coca-Cola Bottling

Co. v. Teamsters & Helpers Local No. 150, 440 F.2d 1096,

1098 (9th Cir. 1971) (“[An] amended complaint supersedes

the original, the latter being treated thereafter as non-

existent”); Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.

1991) (“amended pleading supersedes the original pleading”);

Mohave Concrete and Materials v. Scaramuzzo, 154 Ariz. 28,

30, 739 P.2d 1345, 1347 (Ct. App. 1987) (“because two

complaints cannot coexist in the same action, the filing of a

substituted or amended complaint must of necessity remove

the original pleadings from the file”). Thus, when Plaintiffs

filed the amended complaint, the original complaint was no

longer in effect. Because no litigation took place between the

filing of the original and amended complaints, it follows that

the time for removal should be calculated from when

PacifiCorp and Myers were served for the first time, with the

amended complaint. Therefore, PacifiCorp’s removal of the

case 30 days later was appropriate. Moreover, Plaintiffs also

served that amended complaint on Myers fewer than 30 days

before it joined in the removal.’

* As explained below, the service of the original complaint on

Myers, should not, consistent with the modern trend in the law,

preclude it from joining a removal as opposed to initiating it.

Although Myers filed an answer before joining in the removal,

filing an answer before removal does not waive one’s right to

remove. See Haun v. Retail Credit Co., 420 F. Supp. 859, 864

(D.W.V. 1976) (“The Court therefore holds that a defendant does

not waive his right to remove when he answers in state court and

then files a petition for removal timely under § 1446(b)”); Estevez-

Gonzalez v. Kraft, Inc., 606 F. Supp. 127, 129 (S.D. Fla. 1985)

(“the mere filing of a responsive pleading is generally held not to

constitute a waiver”).

89a

The cases cited by Plaintiffs that hold that an amended

complaint does not extend the time for removal have no

applicability here. In each of those cases, litigation at the

State court level had not only begun but had proceeded in such

a way that the defendants had in essence voluntarily submitted

to the state court’s jurisdiction and therefore were not allowed

to later withdraw from it. This case drastically differs from

those cases cited by Plaintiffs because the case was not

actively litigated in state court. Because no action had

occurred in the litigation prior to the filing of the amended

complaint and the amended complaint supersedes the original,

the time for filing responsive pleadings and the time for

removal should run from the date of service of the amended

pleading. Plaintiffs’ authority simply does not apply under the

present facts.

Ill. THE “FIRST-SERVED DEFENDANT RULE”

MUST BE REJECTED

Even setting aside the timely removal of the amended

complaint as set forth above, this Court should still determine

the removal as timely by rejecting the “first-served defendant

rule” in this case.

A. The First-Served Defendant Rule is Not Precedent in

Arizona

Plaintiffs’ motion’s assertion (at p. 6) that the District of

Arizona has adopted the first-served defendant rule is based

exclusively on a misreading of Schwartz v. FHP Int’l Corp.,

947 F. Supp. 1354 (D. Ariz. 1996). Whether the time for

removal should begin with service on the first defendant was

never an issue that the court had to consider in Schwartz,

since not all of the defendants joined tn the removal in that

case. 947 F. Supp. at 1360. Instead, defendant FHP sought

90a

removal on the grounds that the court had exclusive

jurisdiction over the claims, and thus, joinder of all

defendants in the removal was not required, or alternatively,

that the claims asserted against FHP were separate and

independent, thus permitting FHP to remove solely on its

behalf. The court rejected FHP’s arguments, leaving it to

decide whether removal was still permitted. Aud, because not

all defendants had joined, there was no alternative but to

remand, and no reason to consider whether the first-served

defendant rule was to be applied. Therefore, despite

Plaintiffs’ assertion that Arizona has adopted this rule, it is

clear that the ruling in Schwartz did not address it and the

Ninth Circuit has adopted no such rule. See e.g., Griffith v.

American Home Prods. Corp, 85 F.Supp.2d 995, 1000-01

(E.D. Wash. 2000) (concluding that the Ninth Circuit has not

adopted the first-served defendant rule).

B. Public Policy Dictates Reasons to Reject the First-

Served Defendant Rule

The first-served defendant role was prompted by attempts

to adhere to the requirement imposed by the removal statute

[28 U.S.C. § 1446(b)] that all served defendants remove, or

consent to removal, within 30 days of service. Thus, courts

have suggested that the first-served defendant rule is an

attempt to effect the purposes for the 30-day limitation, which

are “two-fold: to deprive the defendant of the undeserved

tactical advantage that he would have if he could wait and see

how he was faring in state court before deciding to remove the

case to another court system; and to prevent the delay and

waste of resources involved in starting a case over in a second

court after significant proceedings, extending over months or

even years, may have taken place.” Wilson v. Intercollegiate

(Big Ten) Conference Athletic Ass ‘n, 668 F.2d 962, 965 (7th

Cir. 1982). When, as here, neither of those purposes will be

9la

adversely affected by removal and the failure to allow the

removal would be unfair to the later-served defendant

(PacifiCorp), then there is no warrant to apply the first-served

defendant rule. E.g., Eltman v. Pioneer Communications of

Am., Inc., 151 F.R.D. 311, 317 (N.D. Ill. 1993) (denying

motion to remand); see also Ford v. New United Motors Mfg.,

Inc., 857 F. Supp. 707, 709-10 (N.D. Cal. 1994) (denying

motion to remand).

Given that this matter was commenced in early May, it

can hardly be said that the Defendants are trying to escape a

state court where they have not fared well. Moreover, because

the original complaint was filed less then three months ago,

and the first scheduling conference has yet to take place, there

will be no delay or waste of resources from having to start a

matter over after it has been pending in state court for a

considerable time. Indeed, this Court’s prompt setting of the

initial scheduling conference likely means that this case will

soon be further along than if the matter had remained in state

court. Correctly understood, many of the case authorities on

which the motion relies were significantly influenced by a

concern about inevitable delays that accompany removals

attempted after the litigation was well underway.’ For

example, in Cantreli v. Great Republic Ins. Co., 873 F.2d

1249, 1254 (9" Cir. 1989), not only was the notice of removal

filed two years after the start of the lawsuit, but by a party

that, although not formally served, had answered the

complaint and actively participated in the litigation before

being served. Likewise, in McAnally Enters. v. McAnally,

107 F.Supp.2d 1223, 1229 (C.D. Cal. 2000), “[the]} case

* As discussed above, this Court need not even consider the first-

served defendant rule because the

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