Branch v. Coca-Cola Bottling Co. Consol., CA No. 0:99-4014-19.

• Decision Date: 09 February 2000
• Docket Number: CA No. 0:99-4014-19.
• Citation: 83 F.Supp.2d 631
• Parties: Kevin D. BRANCH, as parent and Guardian ad Litem for Kevin Devon Branch, Jr., a minor, Plaintiff, v. COCA-COLA BOTTLING COMPANY CONSOLIDATED f/k/a Piedmont Coca Cola Bottling, and Coca Cola Company, Defendants.
• Court: U.S. District Court — District of South Carolina

83 F.Supp.2d 631

Kevin D. BRANCH, as parent and Guardian ad Litem for Kevin Devon Branch, Jr., a minor, Plaintiff, v. COCA-COLA BOTTLING COMPANY CONSOLIDATED f/k/a Piedmont Coca Cola Bottling, and Coca Cola Company, Defendants.

CA No. 0:99-4014-19.

United States District Court, D. South Carolina, Rock Hill Division.

February 9, 2000.

Ronald E. Alexander, of McDonald McKenzie Rubin Miller and Lybrand, Columbia, SC, for plaintiff.

Howard A. VanDine, III, Nelson Mullins Riley and Scarborough, Columbia, SC, for defendants.

ORDER

SHEDD, District Judge.

The issue before the Court concerns the timing of removal under 28 U.S.C. § 1446(b) when multiple defendants are served with the initial pleadings on different dates. Defendants jointly removed this automobile accident (negligence) case from state court on December 6, 1999—33 days after service of the summons and complaint on Coca Cola Company ("Coke") and 30 days after service on Coca-Cola Bottling Company Consolidated ("CCB").¹ Plaintiff now moves to remand the case pursuant to 28 U.S.C. § 1447(c), arguing that the removal is defective because it was effected more than 30 days after service of the summons and complaint on Coke. For the reasons set forth below, the Court will grant the motion and remand this case to state court.

I

"Th[e] right of removal is statutory. Before a party can avail himself of it, he must show upon the record that his is a case which comes within the provisions of the statute."² Federal courts must construe removal statutes strictly, guard "against expansion" of removal jurisdiction "by judicial interpretation," and "`resolve all doubts about the propriety of removal in favor of retained state court jurisdiction.'"³ When, as here, a case is removable based on the initial pleadings, the applicable removal statute — § 1446(b) — provides that "[t]he notice of removal ... shall be filed within thirty days after the receipt by the defendant" of those pleadings. "If the defendant does not act within thirty days, the case may not be removed."⁴ The purpose underlying this limited removal period is the "prevent[ion][of] undue delay in removal and the concomitant waste of state judicial resources.⁵

A.

While § 1446(b) "does not address multiple defendants,"⁶ it is clear that when a plaintiff sues multiple defendants, "all of the defendants must agree to the removal of the state court action"⁷ and, consequently, "all served defendants must join in a [notice] of removal...."⁸ Both defendants joined in the notice of removal. However, Coke did not attempt to remove the case within 30 days from the date it was served. Instead, Coke allowed its 30-day period to lapse, and simply joined in CCB's removal notice. Plaintiff argues that Coke's failure to seek removal within its own 30-day removal period makes the removal defective. Defendants counter that because CCB timely sought removal, Coke was entitled to join in the removal notwithstanding Coke's failure to seek removal on its own behalf in a timely manner.

Resolution of the motion to remand therefore requires the Court to determine one issue: in a multi-defendant case, must each defendant seek removal within their own 30-day service period, or does any one defendant's timely removal effort permit any other defendant to join in the removal notwithstanding the other defendant's earlier failure to seek removal on its own behalf. Neither the Supreme Court nor the Fourth Circuit has definitively spoken directly on this precise issue. The Court does not, however, approach this issue with a clean slate.

B.

In McKinney, the Fourth Circuit considered a different issue involving removal by multiple defendants. Unlike this case, where the first-served defendant (Coke) did not effect removal within its own 30 days, the first-served defendant in McKinney did remove the case in a timely manner. Thereafter, a defendant which was served within the first-served defendant's 30-day removal period joined in the first-served defendant's removal notice, but did not do so within the first-served defendant's 30-day period. The issue in McKinney was whether the later-served defendant's failure to join in the first-served defendant's removal notice within the first-served defendant's 30-day period rendered the removal defective. The Fourth Circuit held that "under ... § 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."⁹ Therefore, the Fourth Circuit concluded that the removal in that case was not defective because the later-served defendant joined in the first-served defendant's removal within 30 days of service on the later-served defendant.

In its analysis, the Fourth Circuit recognized that neither the language of § 1446(b) nor its legislative history resolved the issue. Turning next to the reported caselaw, the Fourth Circuit found the cases presented to it to be unpersuasive. The Fourth Circuit therefore grounded its decision on policy considerations, the most notable of which is the principle that "the removal procedure is intended to be `fair to both plaintiffs and defendants alike.'"¹⁰ The Fourth Circuit concluded that not allowing each defendant to have thirty days from their own date of service in which to seek removal could allow plaintiffs to manipulate the timing of service to effectively preclude later-served defendants from meeting the first-served defendant's 30-day period.

The actual holding in McKinney, detailed above, does not control this case. However, in an explanatory footnote, the Fourth Circuit distinguished the removal issue before it from two other multi-defendant removal scenarios:

[W]here B is served more than 30 days after A is served, two timing issues can arise, and the law is settled as to each. First, if A petitions for removal within 30 days, the case may be removed, and B can either join in the petition or move for remand. Second, if A does not petition for removal within 30 days, the case may not be removed.¹¹

The italicized portion of this quote describes for all practical purposes the facts of this case and, if applied, compels remand of this case to state court. However, because this statement was unnecessary to the Fourth Circuit's actual decision, it must be considered as being dictum.¹² Even so, one judge in this district has relied upon McKinney to adopt the approach advocated by plaintiff.¹³

Here, as in McKinney, the statutory language does not resolve the issue and, as noted, there is no controlling precedent. Defendants urge the Court not to follow the McKinney dictum because of "equitable considerations" and "rules of statutory construction." With full recognition that McKinney is not necessarily controlling, the Court nonetheless rejects defendants' invitation to cast it aside.

II

It is self-evident that characterization of language in a judicial opinion as dictum does not mean that it is legally incorrect.¹⁴ Indeed, as a general principle, "a federal district court is required to give great weight to the pronouncements of its Court of Appeals, even though those pronouncements appear by way of dictum."¹⁵ Essentially, whether expressed in these terms or not, dictum from the court of appeals should be considered presumptively correct by the district courts within that circuit. Only when a district court is convinced that its court of appeals' dictum is clearly incorrect should the dictum be disregarded. Far from being convinced that the McKinney dictum is incorrect, the Court finds that it is, in fact, correct.

A.

As noted, § 1446(b) provides that "[t]he notice of removal ... shall be filed within thirty days after the receipt by the defendant" of the initial pleadings, and McKinney holds that each defendant in a multi-defendant case is entitled to its own 30-day period after it has been served in which to file a notice of removal. In this case, Coke — the first-served defendant — did not file a notice of removal within 30 days after it received the initial pleadings. Defendants argue that it would be inequitable to preclude removal because of Coke's failure to act within its 30-day period, and they cite McKinney — and cases relying on McKinney — for this contention. The Court finds, however, that the equitable considerations present in McKinney are irrelevant in this situation.

As an initial matter, the Court rejects defendants' argument that McKinney should be read as an abandonment of the policy of strictly construing removal statutes in favor of a policy of "equitable" — that is, liberal — construction. Not only is this argument contrary to more recent pronouncements from the Fourth Circuit,¹⁶ but it also misconstrues the doctrine of strict statutory construction. To be sure, the Fourth Circuit expressly rejected an invitation to base its decision in McKinney mechanically on grounds of strict construction.¹⁷ But, in doing so, the Fourth Circuit did not express disapproval of that concept. Instead, the Fourth Circuit articulated significant policy reasons which are consistent with § 1446(b) and the removal scheme as a whole. "The canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose," and it does not "demand that a statute be given the `narrowest meaning;' it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers."¹⁸ The Fourth Circuit's decision is completely in accord with this principle.¹⁹

In any event, there is nothing inequitable about requiring the first-served defendant to file its notice of removal within its own 30-day removal period. Here, both Coke and CCB were entitled to, and received, exactly what § 1446(b) and McKinney require: 30 days from the date they were served in which to file (or join in) a notice of removal. Unfortunately for defendants, Coke failed, for whatever reason, to exercise its right. Coke's...