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Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.

Supreme Court of the United States · 1999 · Civil Procedure

Civil ProcedureRemovalService of Process28 U.S.C. § 1446(b)removalservice of processsummonsformal service

Facts

Michetti filed a complaint in Alabama state court on January 26, 1996, alleging breach of contract and fraud against Murphy. Three days later, before formal service, Michetti faxed a file-stamped courtesy copy of the complaint to a Murphy vice president, and the parties discussed settlement. On February 12, 1996, Michetti formally served Murphy under local law by certified mail. Murphy filed its notice of removal on March 13, 1996, which was 30 days after formal service but 44 days after receipt of the faxed complaint.

Issue

Does the 30-day period for removal under 28 U.S.C. § 1446(b) begin when a defendant merely receives a filed complaint before formal service, or only when the defendant is brought under the court's authority by formal service of process or its equivalent?

Rule

A named defendant's time to remove under 28 U.S.C. § 1446(b) is triggered by simultaneous service of the summons and complaint, or by receipt of the complaint through service or otherwise after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service. Absent waiver, a defendant is required to act as a party only upon service of summons or another authority-asserting measure.

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Lakeshore Fabrication, LLC, based in Indiana, was sued in Ohio state court by Cedar Valley Aggregates, Ltd. Counsel for Cedar Valley emailed a file-stamped copy of the complaint to Lakeshore's general counsel on May 1, but formal service under Ohio law was not completed until May 22. Lakeshore filed a notice of removal in federal court on June 15.

Assuming subject-matter jurisdiction otherwise exists, was the notice of removal timely?

Explanation. The removal clock does not begin on mere receipt of a complaint unaccompanied by formal service. Under the majority rule, absent waiver, a defendant is required to act only when brought under the court's authority by service of summons or an equivalent authority-asserting measure. Because Lakeshore removed within 30 days after formal service on May 22, removal was timely even though it had received a courtesy copy earlier.