McKinney v. Board of Trustees of Mayland Community College, 91-1523

Citation955 F.2d 924
Decision Date03 February 1992
Docket NumberNo. 91-1523,91-1523
Parties72 Ed. Law Rep. 767 Ronald McKINNEY; Jean Johnson; Juanita Blake; Pat Phillips; Eugene W. Morgan; Ralph Rice; Barbara McKinney, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF MAYLAND COMMUNITY COLLEGE; Virginia Foxx, in her official and individual capacity; Richard L. Muri, in his official and individual capacity; Evelyn B. Dobbin, in her official and individual capacity; Frank H. Fox, in his official and individual capacity; Hal G. Harrison, in his official and individual capacity; Fred O. Hughes, in his official and individual capacity; Ted M. McKinney, in his official and individual capacity; J. Ardell Sink, in his official and individual capacity; Bill J. Slagle, in his official and individual capacity; Saxton Hall Smith, in his official and individual capacity; Barbara Timberman, in her official and individual capacity; J. Todd Bailey, in his official and individual capacity, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

John West Gresham, Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., Charlotte, N.C., argued (C. Margaret Errington, on brief), for plaintiffs-appellants.

Michelle Rippon, Van Winkle, Buck, Wall, Starnes & Davis, Asheville, N.C., argued, for defendants-appellees.

Before ERVIN, Chief Judge, HAMILTON, Circuit Judge, and SHEDD, District Judge for the District of South Carolina, sitting by designation.

OPINION

ERVIN, Chief Judge:

The plaintiffs, 1 former employees of Mayland Community College, which is a part of the North Carolina community college system, sued the defendants in state court alleging that they had been unlawfully discharged because of their political affiliations, or, in the case of Barbara McKinney, for writing a letter critical of how the college selected its president. The defendants removed the case to federal district court and sought summary judgment. After the plaintiffs moved to remand the case to state court, the district court denied the plaintiffs' motion to remand and granted the defendants' motion for summary judgment. The plaintiffs appeal both rulings. For the reasons discussed below, we affirm the denial of the plaintiffs' motion to remand and reverse the granting of the defendants' motion for summary judgment.

I.

The first issue involves determining whether one of the defendants timely joined in the petition for removal. Under 28 U.S.C. 1446(b), a defendant must petition for removal within thirty days of receiving service of process. If the defendant does not act within thirty days, the case may not be removed. Relevant facts follow, while facts relating to the summary judgment issue are set out in part II of this opinion.

The plaintiffs filed their complaint in the Superior Court of Yancey County, North Carolina, on April 25, 1988. Three of the twelve defendants were served with process the same day. Eight others were served on May 19, twenty-four days later. The first three defendants who were served and seven of the eight others then petitioned for removal on May 25, exactly thirty days after service on the first three defendants.

The one defendant who had been served on May 19 but who did not join in the petition for removal on May 25 was Saxton Hall Smith. Smith was out of town at that time and his attorney had not been able to contact him. A twelfth defendant, Evelyn Dobbin, was served after the petition for removal was filed. She and Smith joined in the petition for removal on June 20. 2 The plaintiffs argue that Smith was required to petition for removal by May 25, thirty days after the first service on any of the defendants. Because he did not, and all served defendants must join in a petition for removal, the plaintiffs argue that the district court should have granted their motion to remand to state court. In rejecting that argument, the district court held that "under Section 1446(b), individual defendants have thirty days from the time they are served with process or with a complaint to join in an otherwise valid removal petition." McKinney v. Board of Trustees of Mayland Community College, 713 F.Supp. 185, 190 (W.D.N.C.1989).

Whether the thirty-day limit on removal to federal court begins to run with the first service when there are defendants served on different days is a question of first impression in the Fourth Circuit. In the district court's words, "The issue is whether B has thirty days from the time he himself is served to join the removal petition, or must join within thirty days of A's service." Id. at 188. Here, "B" is defendant Smith and "A" is the group of three defendants who were served on April 25. 3

We begin our analysis with the statutory language. Under 28 U.S.C. § 1446(b):

The petition for 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 ... or within thirty days after the service of summons upon the defendant....

Section 1446(b) does not address multiple defendants. The district court, in analyzing the statutory language, stated:

If anything, the use of the word "defendant", singular, seems to refer to notice to the individual defendant, not defendants collectively, nor to whichever one happens to be served first. And Congress was quite capable of using the plural when that is what it meant, as it did in 1441(a)'s reference to "the defendant or defendants". It is as if 1446(b) read, by ellipsis, "... receipt by the defendant in question ...". It would be awkward, and stretching things, to read in "... receipt by the defendant first served."

McKinney, 713 F.Supp. at 188-89. While we agree with the district court that reading in "the defendant first served" is inappropriate, we are not entirely persuaded by the "Congress was quite capable of using the plural" argument. We also do not agree with the plaintiffs' contention that the later served defendant should be required to join in the petition for removal within the first served defendant's filing period because removal statutes in general are strictly construed. We believe instead that the statutory language by itself does not answer our question, because section 1446(b) only contemplates one defendant. Therefore, we must resort to other authority to answer our question.

Unfortunately, the legislative history of section 1446(b) does not address the situation where multiple defendants are served on different days. We next examine caselaw from other jurisdictions. There are very few reported cases on point, and only one circuit court has addressed our issue. Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254 (5th Cir.1988). Getty Oil involved three defendants: Insurance Company of North America (INA), Companies Collective, and NL Industries (NL). INA was served on September 3; Companies Collective was served on September 5; and NL was served on September 24. INA and Companies Collective petitioned for removal on September 26. NL joined in the petition on October 24, which was thirty days after it had received service but fifty-one days after INA was first served. The Getty Oil court held that "since the petition must be submitted within thirty days of service on the first defendant, all served defendants must join in the petition no later than thirty days from the day on which the first defendant was served." Id. at 1263.

We do not find the Getty Oil conclusion to be logical. While the first served defendant clearly must petition for removal within thirty days, section 1446(b) does not imply in any way that later served defendants have less than thirty days in which to act. Although the Getty Oil court stated that its rule "promotes unanimity among the defendants," id., "unanimity" appears to be an inappropriate word choice. Rather, in establishing one fixed deadline for defendants served as much as thirty days apart, a better term for what the Getty Oil rule could lead to is "inequity." We do not think that Congress, in providing for removal to federal court, intended to allow inequitable results. Nor do we believe that it is appropriate for a court to add a word to a statute, as the Getty Oil opinion does by in effect inserting "first" before "defendant."

The plaintiffs cite three other reported decisions on point, all of which agree with the rule in Getty Oil: Varney v. Johns-Manville Corp., 653 F.Supp. 839 (N.D.Cal.1987); Godman v. Sears, Roebuck and Co., 588 F.Supp. 121 (E.D.Mich.1984); Schmidt v. National Organization for Women, 562 F.Supp. 210 (N.D.Fla.1983). In addition, a recent opinion from the District of Maryland cites the Getty Oil rule favorably in dicta. Johnson v. Baltimore City Police Dept., 757 F.Supp. 677, 679 (D.Md.1991). The facts in Johnson were different from those in Getty Oil and our case. In Johnson, there were five defendants. All were served between October 19 and October 23. The defendants all petitioned for removal on December 4, forty-six days after the first defendant was served. Therefore, unlike Getty Oil and our case, there was no otherwise valid petition for removal, and Johnson does not plainly contradict the district court's holding in our case.

Of course, Getty Oil and the few district court decisions on point are only persuasive authority to this court. Because we are unpersuaded, we look next to policy concerns. The main policy concern the plaintiffs cite is that a plaintiff is entitled

to know within a prescribed period of time whether the case will proceed in state or federal court. Procedural, calendaring, discovery, and other rules in various state courts differ from those in federal court and the plaintiffs who have legitimately made the decision to pursue their action in an appropriate state court are entitled to know at the earliest possible date if their choice of forum is going to be defeated by the defendants.

Plaintiffs' Brief at 12 (citation omitted). We...

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