properly formally served with the amended complaint.
Moreover, on June 24, 1999, the state court judge had not yet
determined whether process and the original complaint had been
properly served on any of the originally named defendants. It is
possible that, under the now-defunct "receipt rule," defendants'
counsel's receipt of a copy of the amended complaint might have
started the thirty-day clock. The Murphy Court held, however,
that conveying a courtesy copy of a file-stamped complaint to a
defendant does not amount to formal service and does not start
the thirty-day clock. See Murphy, 119 S.Ct. at 1326-29.
Plaintiffs therefore did not effect formal service on any
defendant when they provided defendants' counsel with a copy of
the file-stamped amended complaint on June 24, 1999.
Florio contends that no defendant was formally served until
Florio accepted service of the second amended complaint on
September 9, 1999. This court disagrees. Until August 16, 1999,
no defendant had been properly served with the original complaint
in case number 99 L 1730 or with the original or amended
complaint in case number 99 L 2065. On August 16, 1999, however,
the Schonfeld defendants withdrew their motion to quash service
of process with respect to plaintiffs' original complaint in case
number 99 L 2065, and the state court ordered the Schonfeld
defendants to answer the second amended complaint in that case by
September 14, 1999. By withdrawing their motion to quash on
August 16, 1999, the Schonfeld defendants waived their objection
to service and submitted to formal service of process nunc pro
At this point, the thirty-day removal period began to run, and
it began to run for all defendants in case number 99 L 2065. In
so holding, this court follows the majority of courts that have
ruled on the issue in this district and elsewhere, and adheres to
the "first-served defendant" rule on the particular facts of this
case. See, e.g., Getty Oil Corp. v. Ins. Co. of N. Am.,
841 F.2d 1254 (5th Cir. 1988) (citing cases); Regalado v. City of
Chicago, 946 F. Supp. 560 (N.D.Ill. 1996); Scialo v. Scala
Packing Co., 821 F. Supp. 1276 (N.D.Ill. 1993) (citing cases);
Grzetich v. VLI Corp., 670 F. Supp. 793, 794 (N.D.Ill. 1987);
Ortiz v. General Motors Acceptance Corp., 583 F. Supp. 526, 529
(N.D.Ill. 1984) ("[I]f defendants are served at different times,
and the first-served defendant fails to file a removal petition
within 30 days, later-served defendants cannot remove within 30
days of their service.").
As Judge Shadur held in Scala, under the first-served
defendant rule, "Section 1446(b)'s 30-day time clock begin[s] to
run with service on the first defendant entitled to remove."
Scala, 821 F. Supp. at 1277. The rule rests on the
long-established principle that "all defendants who may properly
join in the removal petition must join." P.P. Farmers' Elevator
Co. v. Farmers Elevator Mutual Ins. Co., 395 F.2d 546, 547 (7th
Cir. 1968) (internal citations and quotation marks omitted). If
the first-served defendant does not opt to remove before his time
to remove expires, he waives his right to remove the case from
state court. Allowing a later-served defendant to remove after
the first-served defendant has waived his removal rights would be
futile, because the first-served defendant would be unable to
join that petition and the case therefore would be unremovable.
No defendant attempted to remove the instant lawsuit within
thirty days of August 16, 1999. Florio's attempt to remove the
case on October 8, 1999, was therefore untimely. Florio attempts
to avoid this result by citing cases in which courts deviate from
the "first-served defendant" rule. See, e.g., Brierly v.
Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999)
(allowing a later-served defendant to remove because he was not
served until long after the first-served defendant's thirty day
period had expired); McKinney v. Board of Trustees of Mayland
College, 955 F.2d 924 (4th Cir. 1992); Eltman v. Pioneer
Communications of America, 151 F.R.D. 311 (N.D.Ill. 1993).
The instant case does not fall into the exception to the rule
created by the Fourth Circuit in McKinney. In that case, the
first-served defendant timely removed, but a later-served
defendant failed to join within the thirty-day period.
McKinney, 955 F.2d at 925. The court need not agree or disagree
with the McKinney exception because it is inapplicable to the
instant case. The McKinney court acknowledged that if the
first-served defendant never even attempts to remove while his
thirty days run, the case cannot be removed by any defendant.
Id. at 926 at n. 3 ("if [defendant] A does not petition for
removal within 30 days, the case may not be removed") (citing
Quick Erectors, Inc. v. Seattle Bronze Corp., 524 F. Supp. 351,
354 (E.D.Mo. 1981) ("If the defendant who was served first fails
to remove within thirty days, a subsequently served defendant may
not remove even with the first defendant's consent.")).*fn2
The instant case is likewise distinguishable from Eltman, in
which Judge Plunkett rejected the first-served defendant rule for
equitable reasons. Eltman, 151 F.R.D. at 317. Judge Plunkett
held that it would be inequitable to apply the rule to prevent
removal by a defendant who was not even named until after the
first-served defendant had allowed his thirty days to expire.
See id. In the instant case, however, all defendants were named
long before the thirty-day period began to run.*fn3
Moreover, the instant case does not merit the application of
the "right of revival" exception. The Seventh Circuit has held
that, "where the amended complaint in effect begins a new case —
using the 30-day limitation in section 1446(b) to bar removal
would not serve the purposes of the limitation in any significant
way." Wilson v. Intercollegiate (Big Ten) Conference Athletic
Assoc., 668 F.2d 962, 965 (7th Cir. 1982). Even assuming,
arguendo, that plaintiffs' amendments commenced a new case, the
"new case" would have begun on August 16, 1999, the date on which
plaintiffs' filed their second amended complaint and the state
court judge directed the Schonfeld defendants to answer that new
Florio makes much of plaintiffs' failure to timely respond to
defendants' motions to quash service of process for lack of
personal jurisdiction. The other defendants' extant motions to
quash did not prevent the Schonfeld defendants from filing a
notice to remove, however. In a multiple-defendant case, a
properly-served defendant need not join in his notice of removal
defendants who have not been properly served. "Indeed, if a
removal petition is filed by a served defendant and another
defendant is served after the case is thus removed, the latter
defendant may still either accept the removal or exercise its
right to . . . [make] a motion to remand." Getty, 841 F.2d at
1263; see also 28 U.S.C. § 1448 ("In all cases removed from any
State court to any district court of the United States in which
one or more of the defendants has not been served with process .
. . such process or service may
be completed or new process issued in the same manner as in cases
originally filed in such district court.").
In conclusion, the court finds that because the Schonfeld
defendants failed to remove the state case within thirty days of
August 16, 1999, the date they accepted service of process,
defendant Florio's October 8, 1999, removal notice was untimely.
The court therefore remands the instant lawsuit to state court.
Plaintiffs' request for costs and fees is denied, and the status
hearing previously set for February 17, 2000, is canceled.