In Monsanto Co. v. General Electric Co., No. 24-1230 (8th Cir. Jan. 22, 2025), an Eighth Circuit panel splits over when the 30 days begin to run for a removal petition to federal court under 28 U.S.C. § 1446(b) when the parties use a waiver-of-service procedure. The panel majority holds that the time runs from whatever date the parties acknowledge is the date of service, rather than the date of filing of the waiver of service in state court.
Section 1446(b) provides that a petition to remove a civil action from state to federal court must be filed within 30 days “after the receipt by the defendant, through service or otherwise,” of a copy of the pleading. While the law was written in the expectation that a pleading would formally be served by process, in modern times it has been more customary for parties to waive service (under state procedure) in exchange for a longer period for defendant to file a responsive pleading. That is what happened in this case.
Monsanto brought an action against several defendants, including General Electric Co. (GE) concerning Polychlorinated Biphenyls (PCBs) that Monsanto manufactured. “In the action, Monsanto alleges that it continues to incur substantial costs to defend against PCB lawsuits that should be borne by Defendants and seeks to enforce written agreements obligating Defendants to defend, indemnify, and hold Monsanto harmless in all currently pending and future PCB lawsuits.”
“When Monsanto added GE (and others) as defendants in the state court action, it sent a courtesy copy of the amended petition to GE. Following a discussion and several email exchanges, GE’s counsel signed a document on January 5, 2023, entitled ‘Acknowledgement and Waiver of Service of Process.’ This document listed the effective date of service that the parties had agreed to as well as GE’s deadline for filing a responsive pleading. More specifically, the document provides, in relevant part: ‘I hereby (1) waive the necessity of personal service of process under Missouri Supreme Court Rule 54.13(c) on behalf of General Electric for this matter, and (2) acknowledge the date of service of the First Amended Petition on General Electric as January 31, 2023’ . . . . On January 6, 2023, Monsanto filed the acknowledgement and waiver of service in the state court action.” (Emphasis added.)
GE filed a removal petition on February 20, 2023, more than 30 days after the signing of the waiver of service by GE on January 5 or filing on January 6, but within 30 days of the stipulated date of service of January 31. The district court held that the triggering date was January 6, when Monsanto filed the waiver and, because the petition was supposedly filed too late, the case was remanded to state court.
The Eighth Circuit, in a 2-1 decision, vacates and remands. In a brief analysis, the panel majority observes that parties may waive the thirty days by way of a waiver of service.
“Here, the parties waived Missouri Supreme Court Rule 54.13(c)’s personal service provision and expressly agreed that January 31, 2023, was the effective date for service of process. As noted by the district court, the parties did not stipulate to a removal deadline beyond what ordinary procedure would allow. General Electric could have waited until January 31 to send its waiver. Had it done so, the removal clock would have started on that date without any agreement or other action from Monsanto.”
Nothing in section 1446(b), holds the panel majority, would “prohibit parties from selecting a date upon which service will be deemed effective nor do they address the implications of a contractual provision setting an effective date for service that is different from the date the parties sign an agreement waiving service. Under these circumstances, the 30-day removal period began to run not when GE signed the acknowledgment and waiver of service of process or when Monsanto filed the document, but the date the parties agreed that service was effective . . . . Because GE filed its notice of removal within 30 days of the effective date for service of process, the district court erred in finding GE’s notice of removal was untimely.”
Dissenting, Judge Smith would hold GE to the January 5 date when it signed the waiver, and rejects the suggestion that parties can stipulate to another date. Under section 1446(b), “[t]hough a plaintiff may waive a timeliness objection where they engage in affirmative conduct assuring the defendant that they will not object to removal on timeliness grounds or accepting federal court jurisdiction, the parties themselves cannot stipulate to extend the mandatory 30-day removal period . . . . GE cannot rely on the future effective service date because it was an impermissible stipulation that would extend the mandatory 30-day removal period. Because removal statutes like § 1446 are strictly construed with questions resolved in favor of state court jurisdiction, any doubt about the effectiveness of the asserted future service date should be resolved in favor of remand to state court.”