When leave is granted to file an amended complaint, the 30-day clock for removal starts
When a plaintiff moves to amend the complaint, when does the 30-day clock for removal begin? There are a few possibilities:
- The majority rule: the clock begins when the state court grants plaintiff’s motion for leave to file an amended complaint.
- The minority rule: the clock begins when plaintiff files said motion.
After noting the absence of controlling Eighth Circuit authority on this issue, Judge Ross concluded that the Eastern District of Missouri follows the majority rule. See Svoboda v. Smith & Nephew, Inc., 2013 WL 1883249 (E.D. Mo. May 6, 2013).
The case also mentions in a footnote that the District of Kansas appears to follow a variation of the majority rule: the clock begins on the date of service of the amended pleading (which would necessarily be after the state court grants plaintiff’s motion for leave). Id. at *4 n.2 (citing Miller v. Stauffer Chemical Co., 527 F.Supp. 775, 777 (D. Kan.1981) (“when amendment of plaintiff’s complaint is given as the basis for removal, the date of service of the amended pleading itself should trigger the time within which removal is proper”).
Finally, the case provides good reason to conclude that the minority rule doesn’t really make any sense, when you stop and think about it:
A minority of courts appear to have held that where an amended complaint is the document that first gives the defendant notice of removability, the thirty-day period for removal commences on service of a motion to amend or stipulation permitting amendment. However, this approach has been criticized because it would permit a defendant to remove an action despite the fact that the state court might ultimately deny the motion seeking leave to amend. See Sullivan, 157 F.3d at 1094 (“Until the state judge granted the motion to amend … the complaint did not state a federal claim. It might never state a claim, since the state judge might deny the motion … It would be fantastic to suppose that the time for removing a case could run before the case became removable.”)