Removal Statute Amendments and Proposed Changes to Rule 45 Subpoenas

28 U.S.C. § 1446(b): Where there are multiple defendants—time to remove is 30 days from service upon last defendant. The act clarifies the rule concerning the time limitations for removal where there are multiple defendants in a single action. Previously, 28 U.S.C. § 1446(b) stated that the notice of removal had to be filed "within 30 days after service of the summons upon the defendant . . ." This led to confusion and conflicts among courts as to when the time for removal was triggered for each defendant. Some courts held that it ran from the date the summons was served on the first defendant, and others allowed the last defendant served to remove, notwithstanding expiration of 30 days from the time the first defendant was served. The amendment now makes clear that the 30-day period runs from service of the last defendant:

28 U.S.C. § 1446(b)(2)(B).

28 U.S.C. § 1446(c): Establishing the amount in controversy in diversity jurisdiction cases. Section 1446 also was amended to address the uncertainty that existed in establishing the "amount in controversy" ($75,000) to support diversity-jurisdiction removal where the amount in controversy is not apparent in the complaint. This occurs most often in cases pending in jurisdictions where local procedure prohibits a demand for a specific sum of money. Under the new section 1446(c):

28 U.S.C. § 1446(c)(2)(A) & (B).

Consistent with court rulings under the previous statute, information collected during state-court discovery can be used to support removal under these circumstances. 28 U.S.C. § 1446(c)(3)(A).

Exception to the one-year limitation period in cases of bad faith. The amendments still require that a notice of removal in a diversity case be filed no later than one year after the action is commenced. 28 U.S.C. § 1446(c)(1). However, the amendments provide that the one-year period may be extended if the defendant demonstrates that the "plaintiff has acted in bad faith in order to prevent a defendant from removing the action." Id. A defendant could act in bad faith by fraudulently joining a defendant to defeat diversity jurisdiction, or, as the amendments specifically delineate, if the plaintiff deliberately fails to disclose the amount in controversy to prevent removal. 28 U.S.C. § 1446(c)(3)(B).

Severance and remand of independent state-law claims now required. In a significant change, the removal statutes no longer give the federal court the discretion to hear unrelated state-law claims asserted in a case that was removed to federal court based upon federal-question jurisdiction. Under the act, when an action is removed under federal-question jurisdiction and contains unrelated, independent state-law claims, removal of the federal claims is permissible, but the federal court must sever and remand the independent, unrelated state-court claims back to state court. 28 U.S.C. § 1441(c)(2).

However, this rule does not apply to state-law claims that are "within the original or supplemental jurisdiction of the federal court", i.e., those claims "that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. §§ 1441(c); 1367(a). The federal court can still hear those claims together with the federal-question claims.

All defendants must consent to removal. Prior to the act, the removal statutes did not state that all defendants had to consent to removal of a case to federal court, but courts consistently read that requirement into the rule so as to prevent defendants from attempting to litigate a case in two courts. The amended removal statutes have codified this "unanimity" requirement, as follows:

28 U.S.C. § 1446(b)(2)(A).

Interestingly, the amendments do not address the practice of removing a case before service of a forum defendant or defendants thereby avoiding the proscription against removal under 28 U.S.C. § 1441(b)(2) in cases where one or more of the "properly joined and served" defendants is a citizen of the forum. This has become a common practice that many courts have upheld despite criticism from the plaintiff bar. See, e.g., Allen v. Eli Lilly & Co., 2010 WL 3489366 (S.D. Cal. Sept. 2, 2010) (statute's clear language permits pre-service removal); In re Yasmin & Ya (Drospirene) Marketing, Sales Practices & Relevant Products Liability Litigation, 2010 WL 3937141 (S.D. Ill. Oct. 4, 2010); Evans v. Rare Coin Wholesalers, Inc., 2010 WL 595653 (E.D. Tex. Jan. 28, 2010); contra Vivas v. Boeing Co., 482 F. Supp. 2d 726 (N.D. Ill. 2007) (refusing to allow removal of case against forum defendant who had not yet been served).

Practice Tip: In addition to the above rules, when removing a case to federal court, the local rules of the applicable federal court should be consulted as they may impose additional procedures for removal in that district.

FRCP 45—Non-party Subpoenas for Documents
Federal Rule of Civil Procedure 45 governs issuance of subpoenas. Pursuant to Rule 45, a non-party individual or entity may be subpoenaed to appear and provide testimony at a deposition or trial, and/or to allow inspection and copying of documents, electronically stored information, or other tangible things. Rule 45(A)(iii). Rule 45 sets forth the form that the subpoena must take and how it is to be issued and served upon the non-party. The Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed revisions to Rule 45 to clarify and simplify the procedure for issuing and serving subpoenas. The proposed amendments include the following modifications to the rules regarding subpoenas:

See Memorandum from the Honorable Mark R. Kravitz, Chair, Advisory Comm. on Fed. Rules of Civil Procedure, to the Honorable Lee H. Rosenthal, Chair, Standing Comm. on Rules of Practice & Procedure (May 2, 2011, Revised June 16, 2011).

Proposed Rule 45(a)—Issuance of the Subpoena. Rule 45(a)(2) (A) through (C) currently provides different procedures for issuance of a subpoena, depending on the type of subpoena—i.e., whether it is for documents, attendance at a hearing or a trial, or attendance at a deposition. For attendance at a hearing or a trial, Rule 45(a)(2)(A) states that the subpoena must issue "from the court for the district where the hearing or trial is to be held." For attendance at a deposition, Rule 45(a)(2)(B) states that the subpoena must issue "from the court for the district where the deposition is to be taken." For document subpoenas, Rule 45(a)(2)(C) provides that a subpoena must issue "if separate from a subpoena commanding a person's attendance, from the court for the district where the production or inspection is to be made." There is some confusion surrounding Rule 45(a)(2)(C) in particular with regard to the meaning of "production or inspection." Courts interpret "production or inspection" as referring to:

Any one of these places could be implicated in a single situation, and the issue is further complicated in the case of producing documents electronically.

Under the proposed rule, Rule 45(a)(2) would provide that "a subpoena must issue from the court where the action is pending." Id. This would provide a uniform rule for all types of subpoenas and eliminate current Rule 45(a)(2) subsections (A) through (C), which specify different rules for each type of subpoena. This would also remove the requirement in subsection (C) that subpoenas for documents issue from the court "where the production or inspection is to be made."

Proposed Rule 45(a)(4)—notice of subpoenas. Current Rule 45(b)(1) requires notice of document subpoenas to be served on all parties to the action. The proposed amendment requires that the subpoena itself must be served on all parties prior to service on the non-party, and this applies to both pretrial and trial subpeonas.

Proposed Rule 45(b)(2)—proper service of a subpoena. Current Rule 45(b)(2) governs where a subpoena may be served and provides:

Rule 45(b)(2)(B) is subject to Rule 45 (c)(3)(A)(ii), which provides that:

These provisions have resulted in conflicting interpretations and application by the courts. With respect to witnesses, in some cases, some courts have refused to apply the 100-mile restriction to corporate officers of parties to actions. See In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006) (officer of defendant corporation who lived in New Jersey was required to testify in Louisiana even though he was not served at a place designated by Rule 45(b)(2)). With respect to document subpoenas, courts have interpreted the territorial 100-mile limitation in conflicting ways, including:

Under the proposed amendments, Rule 45(b)(2) would be amended to allow for nationwide service: "A subpoena may be served at any place within the United States." This would eliminate subsections (A) through (D), including the 100-mile limitation under subsection (B). The 100-mile limitation of Rule 45 (c)(3)(A)(ii) also would be eliminated.Additionally, the 100-mile limitation is retained for subpoenas commanding attendance of any person (proposed Rule 45(c)(1)), but a new, separate rule would be created for "other discovery." The proposed new rule, Rule 45(c)(2), provides that "[a] subpoena may command . . . production of documents, tangible things, or electronically stored information at a place reasonably convenient for the person who is commanded to produce."

Proposed Rule 45(f)—subpoena-related disputes may be transferred. Proposed Rule 45(f) provides that where a motion is filed to quash the subpoena (or deal with some other subpoena-related dispute) in the district in which compliance is required, that court may transfer the matter to the court handling the underlying action, if the parties consent, or in exceptional circumstances.

If approved, the amendments will go into effect December 1, 2013.

Keywords: litigation, mass torts, Federal Rules of Civil Procedure, Federal Courts Jurisdiction and Venue Clarification Act of 2011

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