Marano Enters. v. Z-Teca Rests., L.P.

Marano Enters. v. Z-Teca Rests., L.P.

Opinion

 [*754]  BOWMAN, Circuit Judge.

Marano Enterprises of Kansas, Bruce Marano, and Leon J. Marano (collectively, Marano) appeal from the judgment of the District Court ¹ denying their motion to remand this removed action to state court and granting the motion to dismiss filed by Z-Teca Restaurants, L.P.; Z-Teca Corp.; Anthony Miller; Daniel Rowe; and Franchise Development Corp. (collectively, Z-Teca). We affirm.

 [**2]  I.

Marano filed suit in state court in Jackson County, Missouri, against Z-Teca alleging fraud, constructive termination, and breach of contract in connection with franchise and development agreements. Two of the defendants were served on February 1, 2000, and two were served on February 3, 2000. On March 3, 2000, thirty-one days after the February 1 service but twenty-nine days after the February 3 service, all five defendants (including Anthony Miller, who had not yet been served) jointly filed a notice of removal in the United States District Court for the Western District of Missouri. Marano sought remand to the state court, maintaining that the notice was untimely as it was not "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) (1994). The District Court surveyed the law, determined that the better-reasoned position was the minority view among the courts at the time, and held that each defendant was entitled to thirty days after service within which to file a notice of removal, [**3]  providing that all defendants joined in the notice. ²  [*755]  Marano appeals, arguing that, because § 1446(b)'s reference to "the defendant" really means the first-served defendant, Z-Teca's notice of removal was untimely. ] We review this question of law de novo.

The position Marano advocates is articulated in the Fifth Circuit's opinions in Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254 (5th Cir. 1988), and Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986). Under the so-called first-served rule, service upon the first of multiple defendants starts the § 1446(b) thirty-day clock running. If all then-served defendants do not join a notice of removal [**4]  within that thirty-day period, no defendants served after the first-served, regardless of when they are served, may remove a state action to federal court even if they file a notice (joined by all defendants) within thirty days of being served themselves.

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