Transcript

CHIEF JUSTICE WILLIAM REHNQUIST: We'll hear argument next in Number 97-1909, Murphy Brothers v. Michetti Pipe Stringing, Inc. Ms. Smith.

ORAL ARGUMENT OF DEBORAH A. SMITH ON BEHALF OF THE PETITIONER

MS. SMITH: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the 30-day time period for removal begins to run when a named defendant receives a copy of the complaint if service of process has not yet been perfected.

28 U.S.C. section 1446(b) requires that notice of removal be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading.

Relying upon the plain meaning of the words, receipt through service or otherwise, the Eleventh Circuit held that the removal period commences when a named party comes into possession of a copy of the complaint, even if service has not been made.

We submit to the Court that, when read as a whole and in conjunction with the other removal statutes, section 1446(b) is ambiguous.

The ambiguity arises from the use of the term, defendant. A defendant can mean either a named party, a party who is named as the defendant in the complaint, or it can mean, in more proper sense, one who has been made a party defendant through service of process.

In section 1441(b), Congress used the term defendant in the narrower sense. 1441(b) states that parties in interest -- or uses the phrase, parties in interest who have been properly joined and served as defendants.

CHIEF JUSTICE REHNQUIST: That's 1441(b)?

MS. SMITH: Yes, sir.

CHIEF JUSTICE REHNQUIST: And in what part of -- it's a short section, but I didn't immediately follow where you were getting the language from.

MS. SMITH: In 1441(b), the second sentence states that any such action, any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

CHIEF JUSTICE REHNQUIST: Do you think that's a definition of defendant?

MS. SMITH: I think it is -- I don't think it is -- was intended as a definitional provision. I think it is a demonstration that Congress was using the term there in a narrow sense, and suggests that perhaps Congress was using that term in a narrow sense in section 1446(b) as well.

JUSTICE ANTONIN SCALIA: I don't see why it's being used in a narrow sense. It would have been used in a narrow sense if 1441(b) had just said, persons who are defendants, and the very word defendants would embrace the terms, have been properly joined and served.

MS. SMITH: Well, I --

JUSTICE SCALIA: It didn't -- Congress didn't think that the word defendant automatically embraced those terms, and therefore it said, who -- people who have been joined and served as defendants.

I'm not sure that it helps your case more than hurts it.

MS. SMITH: Well, I think it -- I disagree with you. I think it does help, because I think it demonstrates that Congress felt a need to articulate in what sense it was using the term, defendant, in recognition that a defendant as -- in common usage a defendant can mean, anybody who is named as a defendant in a complaint, and doesn't necessarily infer only a defendant who has been properly joined.

CHIEF JUSTICE REHNQUIST: But your argument has to be based on the proposition that Congress was using the term, defendant, in 1441(b) in the same way it was using it in 1446(b).

MS. SMITH: Well, our argument is that it suggests, by the use of the term defendant in 1441(b), it suggests that Congress was using the narrow term defendant in 1446(b) as well. I think it demonstrates the ambiguity in the term.

CHIEF JUSTICE REHNQUIST: But then why didn't -- if you're right, why didn't the Congress use all the qualifying language from 1441(b) in 1446(b)?

MS. SMITH: Well, in 1441(b) we're dealing with more than just parties who are named as defendants, because we're talking about parties in interest, and that could possibly be someone other than someone who has actually been named as a defendant in the complaint.

JUSTICE DAVID SOUTER: Even if I -- I'm not sure I agree with you, I think for the same reason that Justice Scalia's question suggested, but assuming that I do agree with you for the sake of argument,

I still have a serious problem with your position, and it's because of the usage of defendant in 1448.

1448 clearly contemplates that some individuals who are defendants in a case that has been removed may not yet have been served, and therefore, in 1448, it seems clearly to be using defendant in the sense of somebody who is simply called that in the pleadings, whether or not served, and that's the sticking point that I have.

How do you explain how I could accept your position for 1446, given the language of 1448?

MS. SMITH: Well, I think you're correct. I think in 1448 Congress was using the term in the broader sense, in recognition that there would be cases where a case had been removed and either the defendant who removed it had not been properly served, or where there were other defendants --

JUSTICE SOUTER: Or had not been served at all. MS. SMITH: -- who hadn't been served at all. JUSTICE SOUTER: Or had not been served at all.

MS. SMITH: I think it is a recognition that that can happen, but it just -- it further demonstrates to me the ambiguity of the term defendant.

JUSTICE SOUTER: Well, assuming that is the case, doesn't it also demonstrate that in 1446 Congress could not have been using defendant in the narrow sense, i.e., that which -- sense that requires service, as part of the meaning of the term?

MS. SMITH: I don't think so, because even if we assume that a defendant can only remove, that there couldn't be an early removal by a defendant who received a copy of the complaint, decided to go ahead and remove it even though his time had not begun to run under a service interpretation.

Aside -- taking that instance aside, there are cases where a defendant's time begins to run because he has been served with process, and there are other defendants in the suit that haven't been served, so 1448 deals with those other defendants who have not been served.

JUSTICE SANDRA DAY O'CONNOR: But it does use the word, the bare word defendant, and there's every indication in our Pullman case that we understand 1448 to apply to someone who is named as a defendant but not yet served, as it states on its face.

MS. SMITH: I think 1448 does apply to someone who has been named but not served, but --

JUSTICE O'CONNOR: How do you relate Federal Rule of Civil Procedure 81(c)? That rule deals with removed actions, and when a defendant has to file his answer.

MS. SMITH: Your Honor, 81(c) is a -- poses a real significant problem if the language, receipt through service or otherwise, means receipt without service.

JUSTICE O'CONNOR: It uses the same language.

MS. SMITH: Yes, it does.

JUSTICE O'CONNOR: Receipt through service or otherwise of a copy, and says that in a removed action in which the defendant has not answered, the defendant has 20 days to file a response, basically.

MS. SMITH: Correct. If -- and that language was added to Rule 81(c) contemporaneously with the amendment of 1446(b) for the purpose of consistency, so it certainly should be interpreted to mean the same thing. If it means only receipt in the absence of service, then it puts the defendant in the position of having to respond, not just remove the case without service but respond to the complaint without service.

CHIEF JUSTICE REHNQUIST: If you're right, Ms. Smith, that there is an ambiguity, then how do you interpret the meaning of the word, or otherwise, after the word, through service, in 1446(b)?

MS. SMITH: I believe that the idea that Congress was trying to set forth was that in a State where the complaint is served with the summons your time runs from receipt through service.

In other States, where you do not receive the complaint with the summons, then it runs from receipt by some other means.

CHIEF JUSTICE REHNQUIST: The situation that obtained in New York at that time?

MS. SMITH: Correct.

JUSTICE JOHN PAUL STEVENS: I'm --

CHIEF JUSTICE REHNQUIST: I had --

JUSTICE STEVENS: Let me ask just one -- the second clause in 1446(b) seems to deal with that situation, that says it should then run from the date of service.

MS. SMITH: Well --

JUSTICE STEVENS: And if that's true, there's nothing left for the other one.

MS. SMITH: Well, the second clause in 1446(b) was added to deal with a peculiarity in Kentucky where the complaint is filed in court, but it never has to be served on the defendant. JUSTICE STEVENS: Right.

MS. SMITH: So if they didn't put in a specific provision, the defendant's time in Kentucky would never begin to run, because he never would receive a copy of the complaint or it could, that situation could occur, and that is the purpose of adding that language to the second phrase.

JUSTICE RUTH BADER GINSBURG: Or otherwise took care of the New York-type States.

MS. SMITH: Correct.

JUSTICE GINSBURG: But you needed the further one to deal with this Kentucky State --

MS. SMITH: The Kentucky situation, correct.

JUSTICE STEVENS: Now, how does New York and Kentucky -- what's the difference between those two?

MS. SMITH: In New York, the defendant -- the complaint was filed and the -- and service of process was perfected without filing or serving a complaint --

JUSTICE STEVENS: That's like --

MS. SMITH: -- but ultimately a complaint had to be filed and served. The defendant ultimately did receive a copy of the complaint.

JUSTICE STEVENS: But wouldn't the second clause cover there rather than the first, even in New York, because if the -- oh, you're saying the complaint need not be served for a long period of time but must ultimately be served, but it would have been filed at the time the suit was filed, wouldn't it?

MS. SMITH: No. No. In --

JUSTICE STEVENS: You mean you can file suit without ever filing a complaint?

MS. SMITH: That's right. You institute a suit by filing a summons, and I think the procedure has changed now, but at that time you instituted a suit by filing a summons and serving it on the defendant, without any requirement that the complaint be filed or served, so the difference is, in Kentucky a defendant could go to the courthouse and get a copy of the complaint.

In New York, the complaint wasn't necessarily there for the defendant to go get it.

CHIEF JUSTICE REHNQUIST: It wasn't even filed in the Clerk's Office?

MS. SMITH: It did not have to be filed in the Clerk's Office when the case was commenced, that's correct.

JUSTICE ANTHONY KENNEDY: In trying to give some meaning to or otherwise, which I find difficult to do, does it help to construe it as covering cases by publication? You can either be served --

MS. SMITH: Well, I think that the problems in interpreting the or otherwise language are much less significant if service of process has already been perfected, because then you don't have the same kinds of concerns about whether the defendant has actually gotten notice that there is a formal proceeding against him.

JUSTICE KENNEDY: Well, but I was wondering if the or otherwise covers that situation. I'm trying to give some narrow meaning to or otherwise, other than just any other means other than service, and I'm having difficulty doing that. I was wondering if --

MS. SMITH: I --

JUSTICE STEVENS: -- if you can find it if you said that it was to take care of publication.

MS. SMITH: I have not been able to come up with any narrow meaning of the phrase, or otherwise.

JUSTICE GINSBURG: There's not much disagreement, is there, that the or otherwise was inserted particularly to take care of the New York situation, where you start an action by filing

-- by serving the summons and unlike the Federal pattern, where they're served together, so they put receipt of the complaint or otherwise, not by process, but that you actually receive the complaint, and I think it's agreed that you have to actually receive the complaint to trigger, under anybody's interpretation.

MS. SMITH: I believe that's correct.

JUSTICE GINSBURG: So --

CHIEF JUSTICE REHNQUIST: Well, that's because of the word receipt.

JUSTICE GINSBURG: Right.

MS. SMITH: Correct.

CHIEF JUSTICE REHNQUIST: I mean --

JUSTICE STEPHEN BREYER: Can I ask a technical, minor thing, following up Justice Stevens? Is this right? My understanding was in the last clause they're talking about a case where the initial pleading, i.e. the complaint, has been filed in court and is not required to be served on the defendant.

MS. SMITH: That's correct.

JUSTICE BREYER: That's Kentucky.

MS. SMITH: That's correct.

JUSTICE BREYER: And in New York, those words do not apply, because in New York a complaint is required to be served on the defendant, but at a later time.

MS. SMITH: Correct.

JUSTICE BREYER: Is that right?

MS. SMITH: That's correct.

JUSTICE BREYER: All right.

JUSTICE STEVENS: Well, you're -- let me be sure I have your position correct. A case is filed, and the -- but the party -- I see, but the party is not served, and you're mailing a copy of the complaint that's actually been filed. You don't consider that otherwise, because there's no service yet.

MS. SMITH: That -- I believe that's correct. I think that's a proper interpretation by reason of, who is a defendant.

JUSTICE STEVENS: But if there were service -- I mean, I suppose the hypothetical case that this applies to is one where the service of the summons comes at a different time from service of the complaint, but I don't think there are any -- they don't do that any place, do they? If they require service of the complaint, it always accompanies the summons, doesn't it?

MS. SMITH: No. It didn't in New York, and that was the very problem that they were addressing. Now --

JUSTICE STEVENS: Because it didn't require any service.

MS. SMITH: No. The -- a summons had to be served in New York. A summons was served when the case was commenced, but it did not require that the complaint be attached to it.

JUSTICE STEVENS: So --

MS. SMITH: Nor did the complaint have to be filed in court.

JUSTICE STEVENS: So the otherwise covers the New York practice of mailing the complaint or --

MS. SMITH: Serving it --

JUSTICE STEVENS: -- having a private processor delivering it.

MS. SMITH: Serving the complaint at some other time after service of process.

JUSTICE KENNEDY: Well then, how -- if we think that's the congressional intent, how do we then define otherwise? What's the general definition of otherwise that is narrow enough to address just this circumstance?

MS. SMITH: I think or otherwise can mean any other -- other way, and if service of process has been perfected to deal with the New York rule.

JUSTICE GINSBURG: What you're saying is, there must be a preliminary. You must have --

JUSTICE KENNEDY: It must --

JUSTICE GINSBURG: Your bottom line is, whatever else, you must have service of a summons, so if you have the complaint served together with the summons, that's fine, that's the Federal pattern.

Or if you receive the complaint apart from service of the summons, but after service of the summons, so I think your ground position is, you must have service.

The complaint can be served simultaneously, or it can be served later, but at a minimum, you must have service.

MS. SMITH: Correct. You must have service, and if you do have service, the problems with notice aren't there. The defendant is on notice once service has been made. He has been properly --

CHIEF JUSTICE REHNQUIST: It's very difficult to reconcile with the language of the statute, which doesn't say -- it says receipt by service or otherwise, so to say that you must have service to get the thing rolling, it seems quite contrary to the language of the statute.

MS. SMITH: I disagree, because I think defendant was intended to mean only a defendant who had been made a defendant through service of process.

JUSTICE O'CONNOR: Let me ask you a practical consequence of the Eleventh Circuit's formulation, which is different than what you urge.

If the defendant has not been served with a summons, but has received a copy of the complaint, and if we interpret the statute as requiring removal to be made within the requisite time from receipt of the complaint, does the defendant waive the right to assert lack of personal jurisdiction for failure to be served? I guess no one disputes that.

MS. SMITH: No. No, I don't think that anybody has asserted that you waive personal jurisdiction.

The problem with Rule 81(c), though, is that our history and our Federal procedures and our understanding of the law is that a defendant doesn't have to do anything until he's been properly served with process.

JUSTICE O'CONNOR: But at least you acknowledge that even if he is required to remove he can say, but I've never been served and I -- he can reserve that, of course.

MS. SMITH: Well, he has to file a responsive pleading, and he may say in his responsive pleading, Rule 12(b), I haven't been properly served, yes.

JUSTICE STEVENS: May I just make this additional observation? It wouldn't necessarily have to be service. I suppose the defendant could enter an appearance, and -- without being served, and then the time would start to run if he got a copy of the complaint.

Say they mailed him a copy of the complaint and said, this was filed, we've sent the marshal off, we can't find you, the defendant could enter an appearance when -- and then the copy would be enough.

MS. SMITH: Could waive service, in other words.

JUSTICE STEVENS: Yes. Yes.

MS. SMITH: Yes, I think that's correct, but a -- an interpretation that requires service and receipt

I think is the most consistent with the legislative history and it also avoids the problems with Rule 81(c), and it also comports with fundamental fairness.

JUSTICE SCALIA: Well, maybe they should have written it that way. I mean, to -- you're saying, to achieve what they wanted to achieve, they should have written it differently.

But if, in fact, they didn't write it differently and went further than they should have gone, I don't know that we have the authority to cut it back.

You're giving this a very artificial definition of defendant. Defendant means -- I mean, there are a lot of conditions for being a proper defendant. Surely service isn't one of them.

I mean, service isn't the only one. I mean, you could be an improper defendant, improperly joined, right?

MS. SMITH: No -- well, certainly you could be an improperly joined, misjoined --

JUSTICE SCALIA: A misjoined defendant

MS. SMITH: -- defendant, but I don't --

JUSTICE SCALIA: But you would still be a defendant.

MS. SMITH: I -- yes, absolutely.

JUSTICE SCALIA: For your purposes. Well, why pick out the one qualification that you have to have been served?

MS. SMITH: Because that's what gives the court jurisdiction over you. I mean, that is what, in our history, the -- has told the defendant that he had to take action.

Before service of process was made, a defendant didn't have to do anything.

It didn't matter if he knew that that suit was sitting out there against him. Until he had been served with process he didn't have to do anything, and I think Congress was acting with that understanding in amending in 1949.

They understood that a defendant doesn't have to do anything. A defendant is truly a defendant only when he has been served with process.

CHIEF JUSTICE REHNQUIST: Well, what if a defendant, several defendants have been named, diversity of citizenship alleged, and one defendant is, in fact, served, the others are not, and that defendant comes in and says, I want this dismissed because by the allegations of the complaint itself it shows there's no diversity here.

Now, aren't those other defendants defendants in any normal sense of the word?

MS. SMITH: They are defendants for determining diversity jurisdiction --

CHIEF JUSTICE REHNQUIST: So --

MS. SMITH: -- whether diversity jurisdiction, because you have to look at everybody --

CHIEF JUSTICE REHNQUIST: Yes.

MS. SMITH: -- in the -- named in the complaint.

JUSTICE STEVENS: Well, is that 100 percent true? What if a motion to dismiss on jurisdictional grounds was made before the wrong defendants had been served?

Couldn't the plaintiff at that time say I've decided to dismiss those, never serve them, just say that I'll just abandon my claim against those?

MS. SMITH: Well, I can't answer that.

JUSTICE GINSBURG: Well, isn't -- a plaintiff can always drop a party when all there has been is a complaint. The com --

MS. SMITH: Correct.

JUSTICE GINSBURG: You're not forced to sue anyone.

MS. SMITH: Correct.

JUSTICE GINSBURG: And that's the easy answer.

MS. SMITH: So if -- certainly if a lawsuit is filed in Federal court the -- on diversity grounds, and they have named a nondiverse defendant, they can drop that defendant, correct.

JUSTICE GINSBURG: But your point is the defendant who isn't served doesn't have to do anything.

MS. SMITH: Correct.

JUSTICE GINSBURG: Doesn't have to answer the complaint, doesn't have to make a motion, can just sit back and until he's served with process he doesn't have to act affirmatively.

MS. SMITH: That's correct.

JUSTICE SCALIA: Well, I mean, that's nice until they passed this statute. What this statute says is, and once you have a copy of the complaint if you want to remove to Federal court, remove to Federal court. I mean, the world won't stop if you set up that thing, it's true, that prior to this statute we had this different system, but what the statute says is that once you get the complaint, through service or otherwise, you have 30 days.

MS. SMITH: Well, I don't disagree that Congress could do that. They could say that yes, you have to remove before you have been served with process. I think the question, though, is that what they intended in 1949.

CHIEF JUSTICE REHNQUIST: Well, it's a question, is that what they said in 1949.

MS. SMITH: Well, correct, but if we get past the ambiguity issue, then we do need to look at what they intended by their language.

And I think in 1949, when they amended this statute, all they were trying to do was correct a very narrow problem.

And in 1948, when the statutes were -- Title 28 was reconfiled and revised in 1928 -- in 1948, excuse me, they specifically tied the removal time to State rules of service and commencement, so I think any suggestion that they were trying to divorce the removal statutes, or the removal procedure from the State rules of service is incorrect. They specifically tied it to that in 1948.

In 1949, they were trying to only correct this very specific problem of a defendant who had been served, the suit had been commenced, but he didn't have any means of determining whether his suit was removable, and that is the problem that they were trying to correct.

JUSTICE STEVENS: Ms. Smith, may I ask you another question? Do you think the word defendant is a term that is governed by Federal law or State law?

Supposing the State had a statute that said, a person becomes a defendant as soon as he -- one State has a statute that says a person is a defendant when the complaint is filed.

Another State has a statute that says a person is not a defendant until he's served with process.

MS. SMITH: I think it is an issue -- for 1446 purposes and for removal purposes it is an issue of Federal law, who is a defendant under Federal law.

JUSTICE STEVENS: So that even if a State had a statute that said, you are a defendant when the complaint is filed, that would not be controlling --

MS. SMITH: I think that's --

JUSTICE STEVENS: -- and I suppose your opponent would make the same answer with respect to the other statute.

MS. SMITH: Well, I mean, what we have to look at is who is a defendant under 1446(b), and that has got to be an issue of Federal law.

Requiring both service and receipt is consistent with fundamental fairness. It is -- it voids a lot of difficult interpretive problems that result from solely a receipt rule.

The lower courts have begun superimposing the service-type ideas on top of the term receipt in order to deal with the concerns about whether the defendant has notice, the proper notice in order to put him on notice that he needs to do something in respond to the -- in response to the complaint when he just receives it by fax or by mail without the formal procedures attendant to service of process.

We submit to you that that approach makes no sense, because if Congress did, indeed, intend receipt to mean any receipt, then superimposing service rules on top of what receipt is is contrary to congressional intent, so --

JUSTICE O'CONNOR: Is it clear under this statute that the complaint has to be filed in court, or can it just be something drafted in the lawyer's office?

MS. SMITH: I think that that is tied to the use of the term initial pleading. And while I think that ordinarily an initial pleading would have to be filed in court,

I don't know if there were some quirky States -- I mean, what we were dealing with was quirky service and receipt rules, I hesitate to use that term, but in the State courts, and I do not know if there was some State where you did not have to file your initial pleading, but I think ordinarily the initial pleading would be a complaint that had been filed, already filed in State court. If there are no further questions, I'll reserve my time.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Smith. Mr. Pugh, we'll hear from you.

ORAL ARGUMENT OF J. DAVID PUGH ON BEHALF OF THE RESPONDENT

JUSTICE O'CONNOR: Mr. Pugh, do you think the complaint has to be filed, in any event, under this statute?

MR. PUGH: Justice O'Connor, yes, and I do agree that the requirement for filing the complaint is implicit in the terms and initial pleadings setting forth a removable cause of action.

JUSTICE SOUTER: What if the complaint in this case had been obtained not by the intentional act of faxing it, but by a different means?

What if the lawyer for the defendant had simply been in the plaintiff's lawyer's office, had seen a copy of the complaint on the desk of his opposing counsel, and had just walked away with it.

Would the period of time start running then?

MR. PUGH: Justice Souter, the position that the respondent would take would require more information. For example, we agree that by initial pleading it would have to be a complaint that had been filed.

There would have to be some indicia on the complaint that that is in fact the case.

JUSTICE SOUTER: Okay. It's --

MR. PUGH: So there would need to be a file stamp.

JUSTICE SOUTER: Okay. I'll add that to my hypo. It has been filed, but it has not been served and, in fact, without any invitation or authority defense counsel simply picked it up off plaintiff's counsel's desk and said, we'll have an early look, and walked away with it. Would the period start running then?

MR. PUGH: Again, Justice Souter, a few more facts --

JUSTICE SOUTER: Want some more --

MR. PUGH: -- might be necessary.

JUSTICE SOUTER: Okay. You complete my hypothetical for me, and then you can answer it. (Laughter.)

MR. PUGH: Well, the facts in the case before the Court are the ideal situation for one reason, primarily.

JUSTICE SOUTER: Well, I --

MR. PUGH: There's nothing -- other than the means of conveyance. Other than the means of conveyance, there is nothing left to be done in the facts before the case.

JUSTICE SOUTER: Okay, but how -- let's get back to my hypothetical. Picks it up off the desk --

MR. PUGH: It would need to be file-stamped. We believe Rule 11 would require --

JUSTICE SOUTER: Why does it have to be file-stamped?

MR. PUGH: That's an indicia that the action is actually pending against the defendant.

JUSTICE SOUTER: So in other words, what you're getting at is, there's got to be some affirmative indication on the plaintiff's part that the plaintiff is going ahead with this, that it's a real lawsuit, and not just some preliminary pleadings that may be -- may or may not be used.

MR. PUGH: Yes.

CHIEF JUSTICE REHNQUIST: Well, also some evidence of authenticity, isn't it?

MR. PUGH: Yes, Mr. Chief Justice.

JUSTICE BREYER: Are you sure --

JUSTICE STEVENS: Well, where does all this come from in the statute? Why does it -- the statute just says a copy. Supposing that instead of mailing a file-stamped copy you had mailed a -- just an office copy with a note on it, this is a copy of what we filed today, wouldn't that be receipt of a copy, or would it, in your view?

MR. PUGH: The extent to which courts may have to go in interpreting receipt does present some problems --

JUSTICE STEVENS: My question is the word copy. If you mail a verbatim copy of the paper you filed in there, but one that is not a photostat of the file-stamped copy, is that a copy within the meaning of the statute?

MR. PUGH: If, in fact, there is -- if, in fact, the action is pending against the --

JUSTICE STEVENS: Yes, the copy -- it is pending.

MR. PUGH: And there is some indicia on the face of the complaint --

JUSTICE STEVENS: Well, the indicia is that one lawyer trusts another lawyer and he writes a letter to the lawyer saying, this is what I filed today. That generally is acceptable among reputable counsel.

MR. PUGH: A court could find that that is enough.

JUSTICE SOUTER: Okay. There is --

JUSTICE STEVENS: Now, my second question -- let me just -- please, may I finish with this one thought. The usual situation that I was familiar with in practice is, before you file the complaint you will

-- as a courtesy you will sometimes fill out and mail a copy to the intended defendant saying, this is a copy of what I propose to file. It's word for word what you do file 5 days later.

Then, has he received -- and then 5 days later he becomes a defendant, the defendant. Has the defendant received a copy within the meaning of the statute?

MR. PUGH: We do not think that on those facts, that the language in the statute would extend to those facts.

JUSTICE SOUTER: Okay, but in --

JUSTICE STEVENS: Why not? Literally it does. Why wouldn't it?

MR. PUGH: There's no action pending. It's not an initial pleading. He is not a defendant. He might become one at some point.

JUSTICE STEVENS: Yes, but I'm talking about what he has in his possession after he becomes the defendant. He has a copy of the complaint.

He has received a copy of the complaint, and he is a defendant, but you say the statute doesn't apply.

MR. PUGH: The language of the statute --

JUSTICE SCALIA: Wait, you say it would apply once it's filed.

JUSTICE STEVENS: So we don't follow the plain language in all cases.

JUSTICE SCALIA: I thought your position was, it would apply once it's filed, when he receives it. 5 days before the complaint is filed the statute is not complied with, but if he gets it 5 days before, and then later, Justice Stevens goes and files the complaint, as he said he would.

Wouldn't, at that point, the statute be complied with? He would have received, been in receipt of a copy of the initial pleading.

MR. PUGH: Justice Scalia, the action -- I'm going to create some language of my own -- would be inchoate. There's no safeguard against further editing of the complaint.

There's no assurance, the defendant would have no assurance that what he had, which was a conception of an action, of an initial pleading, to use the language of the statute, was, in fact, or did evolve into an initial pleading or an action.

JUSTICE BREYER: Then look at what happens in your two examples, the way you have it.

Example one, in New York, somebody serves, the plaintiff serves the defendant. 8 days later -- without a copy. 8 days later, he sends to the defendant, who receives it, a copy of the complaint, but not file-stamped.

He just sent it from his office. In New York, under your theory, the period doesn't run. I mean, we're all mixed up, aren't we.

Case number 2 -- maybe it's the null case. The null case may be, there may be a State somewhere where you can actually serve someone before you actually begin the case.

Is there such a -- do we know if there is such a State?

MR. PUGH: I don't know of such a --

JUSTICE BREYER: We don't know. So all we have to have is a State where it's possible to serve the defendant before you file the case. Then what happens?

{So} what you've produced is an interpretation of the statute which will get people very mixed up, I think. And indeed, her basic claim, your opponent's, is the only way that we won't get people mixed up, finding out, you know, somebody happened to get a copy sent by a paper airplane, and it went in the office, and there had been no such case filed.

The only way not to get them mixed up is if we simply read the word otherwise to say, otherwise after service. That's all.

Otherwise after service, and then nobody gets mixed up, it's clear, everybody understands it. Now, I'm --

CHIEF JUSTICE REHNQUIST: The difficulty with that is, it doesn't say that.

JUSTICE BREYER: No, it doesn't. It also doesn't say otherwise not by paper airplane. It also doesn't say, otherwise and we're talking in the United States. It also doesn't --

JUSTICE SCALIA: And it also isn't her position. I think her position is after summons. She does not require that the complaint have been given.

JUSTICE BREYER: What?

JUSTICE SCALIA: All she would require is that there have been a summons. Whether or not the person -- these same problems arise under the interpretation that the other side would give, because the other side does not require the complaint to have been served.

JUSTICE BREYER: No, no, the --

JUSTICE SCALIA: The other side only requires a summons to have been issued, with or without a complaint.

JUSTICE BREYER: That's --

JUSTICE STEVENS: But with the copy of the complaint having been delivered.

JUSTICE BREYER: Other --

JUSTICE STEVENS: And the ambiguity is, what is a copy of the complaint? This side says it's got to file-stamped, and filed.

The other side might say it is a copy if it has the same language in it word for word, even though it's delivered ahead of time.

JUSTICE KENNEDY: Would you like to participate in the Court's argument? (Laughter.)

MR. PUGH: I'm enjoying -- I'm enjoying the discussion.

JUSTICE SOUTER: Let me ask you this question, Mr. Pugh. You agree that we can't read the statute in its plainest plain meaning, that there has got to be some act on the part of the plaintiff to indicate that in fact a real lawsuit is being filed, rather than merely drafted pleadings being circulated.

I mean, that's your file-stamp example. We've got to have something more. Assuming that to be a sensible position, why isn't the best way to serve that end to say that there's got

-- as your opposing counsel says, there's got to be a service officially of something upon the defendant so the defendant knows beyond any peradventure of doubt that a real lawsuit has been commenced, and knows that at that point he better look at the rules and find out when the time starts running.

Why isn't that the easiest way to satisfy what she claims and what you yourself admit has got to be something more than merely awareness of drafted pleadings?

MR. PUGH: Justice Souter, I think this will answer both yours and Justice Breyer's question. In the words of Mr. Chief Justice, quite simply, the petitioner asks this Court to import the phrase, not service, but service of process into this statute. The words, service of process, do not appear in the statute. They were there in '48.

JUSTICE SOUTER: Neither does stamping of the complaint appear. In other words, you're importing things, too. And if you're going to import things for the very sensible purpose of saying, we've got to know that this is a real lawsuit and not a preliminary drafting exercise, then I'm not sure why we should stop at your point rather than her point, because her point puts somebody definitively on notice, and yours doesn't. Yours has the problems that Justice Breyer's question raises.

MR. PUGH: In 1948, prior to the 1949 amendment, the removal statute expressly adopted a service of process methodology to commence the running of the time.

Congress very quickly recognized the same difficult situations with hypotheticals. They had some real examples before them.

But we think it's improper to conclude, and the legislative history certainly doesn't indicate that the conclusion is well-founded, that the change in '49 was limited solely to New York and Kentucky.

JUSTICE GINSBURG: Would you concede it was triggered by that? Because New York, with serving the summons but not the complaint, just didn't fit into this scheme.

So I think that even if you don't even look at legislative history, that's conceded that Congress was moved by people, States that had New York's pattern. I don't know of any other one that did at the time, but --

MR. PUGH: Yes, those were the immediate problems. But to solve the problem, what Congress did was abandon, abandon service of process, and opt instead for what they hoped would be a uniform Federal standard, and that's the receipt --

JUSTICE GINSBURG: Is there any other -- to decide whether Congress really did that, I wondered whether there's any other instance in all of Federal procedure where a defendant is required to do something on pain of forfeiture, because if you don't do the 30 days, then you can't remove, on pain of forfeiture, without being served with a summons, without having a substitute for that sheriff seizing you.

MR. PUGH: Justice Ginsburg, we believe the answer is yes. In fact that's --

JUSTICE GINSBURG: What else?

MR. PUGH: That's the answer to the Rule 81(c) problem. If a defendant believes he has been improperly served, or that process was improper --

JUSTICE GINSBURG: Not improper. It didn't happen.

MR. PUGH: It didn't happen, but nonetheless, he's received the complaint. The proper procedure, and in fact it's been the policy of the courts consistently, is to resolve that issue quickly by exercising a Rule 12(b)(4) or (b)(5) right. In fact, the Eleventh Circuit has a case where --

JUSTICE GINSBURG: But that, Rule 12(b)(4) or (5) is a responsive pleading. And you're not required to respond to a pleading until you're made a defendant, right?

MR. PUGH: Just by way of one example, the Eleventh Circuit has held to the contrary, and Moore's echoes that as a general policy, that in those limited instances, and it's a limited appearance, you go -- the proper procedure is to go and challenge that. If the defendant is correct --

JUSTICE GINSBURG: I thought the Federal Rules had done away with limited and special appearances.

MR. PUGH: I use an archaic term, but that in effect is what it is. You go and challenge the sufficiency of the service. If service was improper, that defendant is done.

CHIEF JUSTICE REHNQUIST: Well, suppose -- and the term initial pleading may help your case.

If you define an initial pleading as a paper that has been filed in the court, you couldn't have a copy of an initial pleading unless the initial pleading had been -- a pleading means something that's been filed in court.

MR. PUGH: Mr. Chief Justice, that's precisely [*33] the definition we would opt for.

JUSTICE BREYER: Does it always mean in the rules a piece of paper that has on it a time stamp or the equivalent?

MR. PUGH: It would need to have --

JUSTICE BREYER: I mean, one could have a copy of that pleading which has been filed, but that doesn't indicate on it that it has been filed.

MR. PUGH: Even if it did not, but the defendant had some other objective indicia that an action was pending, such as the summons that was date-stamped, and an undate-stamped --

JUSTICE BREYER: Perfect. Then the --

MR. PUGH: Those two together, then it's got --

JUSTICE BREYER: Then the objective indication is that there was a service.

MR. PUGH: In that limited example. But what Congress wanted to do in '49 is move away from that problem and opt for a receipt, a uniform receipt.

JUSTICE STEVENS: No, but Mr. Pugh, you said they totally abandoned service, but the second half of 1446(b) does depend on time of service.

MR. PUGH: The second phrase, which speaks of service of a summons?

JUSTICE STEVENS: Yes.

MR. PUGH: And that, in fact, is where -- the only place that a service of process requirement is imposed.

JUSTICE STEVENS: Yes, but they -- I'm saying, but they did keep it for that case, so you can't say they abandoned it.

MR. PUGH: Which, when contrasted with the first part of the statute, affirms the respondent's position that in those cases when a summons has not been served, which expressly contemplates that the situation could arise, then all that's needed, and what Congress thought was most important, was receipt of a pleading that gave that defendant notice that a removable cause of action was pending. Now, often --

JUSTICE GINSBURG: So do I understand from what you've said, then -- you get the fax copy, a fax copy of what was actually filed in court, so what the Chief suggested has been satisfied.

However, 30 days go by, and you never have been served with process. On day 40 you are served with process. Do I take it that you can't remove under your reading?

MR. PUGH: If you've received the complaint, it was -- an action had --

JUSTICE GINSBURG: You've got this fax, this courtesy thing that was sent to you. Then there's the 30 days to remove, but you sit there, and you have never actually gotten any kind of summons at all, and then you get a summons on day 40.

MR. PUGH: Under the plain meaning of the present version of section 1446, that defendant would have waived the right of removal.

Now, it's always been recognized that it was a limited and waivable right. It hasn't lost any due process. It can still appear in court.

It still has a right to trial by jury, a right to be represented by counsel, the rules of evidence, rules of civil procedure, the appellate rights that it would have. It's just lost that limited, waivable right to an alternative form.

Now, the assertion that the 1949 amendment was a major change, and in fact the Senate report refers to it as a major change, is consistent with a longer view of the legislative history of the removal right.

In the earliest years, a defendant could exercise that right all the way up until the time of trial. It was there because of the perception of local prejudice.

Down through the years, as the perception, hopefully reality of local prejudice abated, Congress has consistently drawn back the time in which that right must be exercised.

JUSTICE BREYER: Right. Your point -- is this your point? I'm beginning to see what I think I missed before. You say that the case has to have begun, so that if, in fact, the defendant gets a copy of the complaint, but gets it before there's been any filing in court, that nothing happens, it's void, it doesn't have an effect, but there has to be a case that's begun.

Now, once that case has begun, in your opinion, the copy that he has has to be a copy that he knows is official, and if he's received through service of process an indication the case has begun, that will probably be enough.

If he hasn't received that, then if the complaint is time-stamped by the court, that will give him the necessary notice that it's official.

MR. PUGH: Yes, Justice Breyer.

JUSTICE BREYER: That's your point.

MR. PUGH: Precisely.

JUSTICE SOUTER: Now, I come from a State that Justice Breyer alluded to in an earlier question in which the theory is that the suit begins not upon filing in court, but upon service on the defendants, so that when, in fact, the copy of the complaint is served upon the defendant, there can't be any date stamp because you don't file anything in court until you've completed your service.

Under your interpretation, the time period does not run in my State, I take it, even upon service, is that correct?

MR. PUGH: The action --

JUSTICE SOUTER: There's no stamp on it. Nothing's been filed in court. Does the -- when the first defendant is served, does the 30-day period start running as to that defendant, in the State of New Hampshire?

MR. PUGH: In your hypothetical case, I think not. An action had not been commenced. Now, again, the facts of the case --

JUSTICE GINSBURG: But we don't know if any State allows such a thing, do we?

JUSTICE SOUTER: Well, yeah. I come from one.

MR. PUGH: Justice Souter's example suggested that it did.

CHIEF JUSTICE REHNQUIST: Was New Hampshire admitted yet? (Laughter.)

JUSTICE KENNEDY: If you have a State, and there are many such States, where the statute of limitations is tolled only upon service, and in your case, if the defendant gets a -- in many cases they're filed right up near the deadline.

In your case, I take it, you would require the defendant to remove even before he's served, and the statute of limitations may later run. I suppose he has waived the statute of limitations by removing.

MR. PUGH: I don't know of a case to cite for the proposition, but I think that would be an incorrect proposition, Justice Kennedy, to the same extent that one does not waive Rule 12 defenses. The mere -- the act of removing --

JUSTICE KENNEDY: Isn't that an appearance in the case? Is the removal an appearance, is it not?

MR. PUGH: Yes, for a limited purpose. In essence, if I could use a colloquialism, it's reserving a seat at the opera.

It's saying, if I do -- if I do have to proceed with a full defense on the merits in this case, I am now asserting my right to proceed in the Federal forum as opposed to the State forum.

That's all that's taking place. If service has not been achieved, the proper procedure is to pursue -- file a motion under Rule 12.

JUSTICE BREYER: All right. I mean, I don't know -- what you've done, which is very interesting, which I hadn't quite taken in, is you've worked out a way both to win your case and also deal with most of the practical problem that they -- your opponents have raised.

MR. PUGH: Yes.

JUSTICE BREYER: Because in your opinion, it can't happen that you'd file these informal copies, throw them through the window, whatever. I understand that. But now I'm sort of at a loss to decide this case.

That is to say, what -- either way, we have to read quite a lot into this statute, don't we, either way.

And then I guess what they have going for them is that their way seems more commonly accepted than the way you've come up with.

MR. PUGH: To the extent that a court is interpreting receipt, or initial pleading, the importation of some meaning is a proper inquiry, we would suggest.

The importation of the phrase, service of process, which was there expressly, and just as expressly abandoned in 1949, is a much longer leap, if you will, farther leap.

JUSTICE BREYER: What they're thinking of, imagine a big office with about 100 people in it, and they have to run these offices, you know. It's a business.

It's a big business and so forth. And so once that process has been filed people are on notice, and if they start getting copies of complaints after that, they'd better take it seriously, but the fourth assistant may not know the significance of this time stamp.

MR. PUGH: Well, in the facts of our case, the person who actually received it, whether under the Alabama rules or the Federal rules, is a person upon whom service could be effected.

We agree, as the Sixth Circuit, the first circuit to address this, pronounced in its opinion, that recognizing that a corporation is a legal entity that must act through its human agents, they had to decide upon whom this receipt determination could be evaluated, and they suggested, it ought to be a person upon whom service could be effected.

That's not offensive to our position, it's consistent with our position, but that's an interpretation of the word receipt, which is in the statute.

JUSTICE GINSBURG: So in the case of the Government, that was concerned because of the special service requirements when you're suing the United States, would you say the complaint then would have to be actually received by all of the people who are entitled by statute to be served?

MR. PUGH: We think so, and that's consistent with our position.

JUSTICE STEVENS: It's consistent with your position, but you recognize that you're doing a little construing of the meaning of the word copy.

It's got to be file-stamped. And you're also construing the word receipt. It's got to be received by a person authorized to take service.

But you don't think there's any room for leeway in defining the term defendant to include someone to say you're not a defendant until you're served with process.

MR. PUGH: Well --

JUSTICE STEVENS: So your literal -- your -- you do a little construing for two words, but not the third.

MR. PUGH: We think, in fact, the defendant, the use of the word defendant in 1446 is consistent with the broader meaning.

As it was observed, defendant without the qualifying language does appear in several other instances, the removal act.

JUSTICE STEVENS: No, that's true, but in order -- one might say that in order to make sense out of this statute and solve all the problems, all you have to do is construe the word defendant for purposes of this statute to mean, a person who is both named in the complaint and has been served with process. If you construe it that way, all the problems are gone.

MR. PUGH: But Justice Stevens, those words aren't there.

JUSTICE STEVENS: I understand that, but if we construed it that way, just as we construe copy to include the file stamp and receipt to be receipt by an officer, if we did construe it that way, there'd be no problem.

MR. PUGH: And Congress could have opted for that.

JUSTICE SCALIA: But that's not true. You would still have to construe -- I mean, it's not whether you construe defendant instead of construing the other two.

It's whether you construe defendant in addition to construing the other two, because the problems as to whether this is the genuine complaint or not would still exist even if the -- even if summons without a copy of the complaint has been received, and the problem whether you can serve it on agents of the Federal Government, set forth in the Federal statute, whether that would constitute receipt, those problems would still exist even if a summons has issued without the complaint, isn't that right?

MR. PUGH: That's correct.

CHIEF JUSTICE REHNQUIST: So --

JUSTICE STEVENS: But they're not very difficult problems.

MR. PUGH: And it hits upon what we believe Congress thought was the primary reason for the changes.

Their inquiry was directed at communicating, conveying, transferring to the defendant the notice that a removable cause of action was pending against it, and that's when they opted for this, as the Senate report said, a major change in the previous methodology from the service of process.

There has been much discussed with respect to the perceived unfairness in some of the extreme hypotheticals. The Eleventh Circuit recognized that the unfairness, to the extent it was present, was --

JUSTICE GINSBURG: Before we go to the unfairness, I'm thinking back to 1949 and what lawyers and judges understood about the State asserting its power over an individual.

That required something official, like service, so why shouldn't we think that that's implicit? It was set so strongly in the common law tradition that the State must assert its authority over you, otherwise you're not subject to the State's power, and it wasn't left to your adversary to assert that power.

That was, I think, the general understanding of lawyers and judges in 1949, and isn't that part of what we should take into account?

MR. PUGH: That is a proper analysis of the need for the mandate, in fact, for the service of process, but that is not implicated in the removal scenario.

All one is doing is preserving, taking out that ticket, preserving the right to proceed if in fact service is properly effected subsequent to the actual removal, reserving the right to proceed in the Federal forum.

The only thing that that defendant must do, and there are cases holding this, that it can be waived if this is not exercised, is going and challenging the service or the process under Rule 12 (b)(4) or (5).

If that defendant is right that he was not served or was improperly served, that action is concluded in all instances, and we can assume it would be without prejudice, and it might be effected later.

If he's wrong, that action would then proceed, but he's preserved his right to remove, and all is well.

JUSTICE SCALIA: And he would be able to challenge the service [*44] immediately in Federal court, instead of having to challenge it in State court.

MR. PUGH: That's correct.

JUSTICE STEVENS: May I just confirm one other -- you agree the word defendant is a matter of Federal definition, not State, so that even if there are State statutes that said, you don't become a defendant until you're served, we would ignore that State statute.

MR. PUGH: My inclination, without thinking about all the possible ramifications, is that we are talking about the Federal right of removal, a limited, waivable right, and if we have to construe that word for purposes of determining whether a receipt has occurred, I would be inclined to go with the Federal definition.

JUSTICE KENNEDY: If a lawyer for a prospective defendant finds out a complaint's been filed and gets it for his own client and sends it to him, I suppose he could be in big trouble under your interpretation.

MR. PUGH: It would depend upon how far the district courts would go in interpreting receipt. We suggested in our brief that that implies an affirmative act.

We had to address the hypotheticals. The facts in our case do not involve that, but we suggest it implies an affirmative act on the part of the plaintiff, not unlike an attempt at service, but it's not necessary to reach that.

JUSTICE KENNEDY: So if you go down yourself, the client defending himself, to the courthouse and gets a certified copy of the complaint, that's not enough.

MR. PUGH: In fact, that's what happens in a State like Kentucky. The -- it's incumbent upon the defendant to go and see if the pleading states a removable cause of action so that he may then exercise his removal rights if they're proper.

Again, the import -- what Congress recognized in 1949 and has echoed in both the Senate and the House report, is that we've got a parade of horribles with the service of process hypotheticals just as you can imagine under the receive analysis, but we're going to abandon that service of process methodology, because that is clearly tied to 50 different States' rules.

We're going to adopt a new methodology, and that's going to be based upon receipt of an initial pleading that sets forth a removable cause of action, because our intent in 1446(b) is to get notice to that defendant that it had better do something or risk waiving its removal rights, and that, at least the 1949 Congress thought was best achieved by requiring receipt, and moving away from the service of process, a phrase that it dropped entirely.

It had been the sole methodology in the statute the year before, and it moved away. In fact, if all Congress intended to do was to solve the New York/Kentucky problem, semicolon provided comma however clause at the end of the 1948 statute would have been the best manner, saying provided, however, that in those States in which a complaint, an initial pleading setting forth the removable cause of action, is not required to be filed or served until later.

Then the time will run when that is received, or served, or whatever methodology they chose.

JUSTICE BREYER: Maybe they did that.

MR. PUGH: There's no indication in the legislative history. It's just -- it's erased, and they started from scratch.

I was about to address the unfairness issue. We think the Eleventh Circuit correctly pointed out that the unfairness concerns are largely if not completely addressed when the state of the law is settled.

All it will take is for this Court to adopt and enunciate the receipt rule and the uncertainty that litigants have as to what to do is then resolved.

JUSTICE STEVENS: Well, it's not resolved if the defendant's lawyer goes -- as Justice Kennedy's example. It's not resolved for my case of a copy mailed before the case is filed at all. They're still open.

MR. PUGH: Again, we think the initial pleading, Justice Stevens, the initial pleading only would require that the action actually be commenced.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Pugh. Ms. Smith, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF DEBORAH A. SMITH ON BEHALF OF THE PETITIONER

JUSTICE KENNEDY: How would you revise this statute if you were rewriting it so that -- and incorporate your client's position? I mean, that's in effect what you want us to do.

MS. SMITH: Well, I certainly would not suggest that I am a drafter of statutes. I think there certainly are ways that this statute could have been better worded.

JUSTICE KENNEDY: You want to say, after receipt by the defendant, comma, after due service, comma --

MS. SMITH: I would have said, receipt or service, whichever is later. That still wouldn't deal with the Kentucky problem. The second phrase would still have to be put in, but I think that would be better language.

But I don't think that Congress always uses what we think to be the best language, and I don't think that indicates that is necessarily not what they intended.

I think the respondent's suggestion that the 1949 amendment was intended to make a major change -- and he's correct, there is a sentence in the legislative history that says this makes a major change, but it made a major change in the context of the bill in which the statute was amended.

There were 174 changes made to the 1948 statutes, and in that context it was a major change because about 170 of those were typographical errors and clerical errors that were being corrected.

There's nothing -- what the legislative history indicates is that Congress' concern was dealing with this New York problem, dealing with the question of what happens if the defendant doesn't have a copy of the complaint from which to determine that his case is removable.

There's nothing to indicate that they wanted to completely divorce the removal provisions from State service of process rules.

I think in addressing the fundamental fairness question, I think there are circumstances where the process would be fundamentally unfair even under Mr. Pugh's interpretation of the other terms within the statute.

For example, a foreign corporation, a defendant receives -- a foreign defendant corporation receives a faxed copy of a file-stamped complaint.

Well, they don't necessarily -- they can't even necessarily read it. There certainly is no reason that they should understand the significance of it and know that they have to act immediately to protect their interests.

Under the service rules, those kinds of issues are taken care of. A foreign defendant is normally served under the Hague Convention, or most of them are, and it requires that the allegations of the complaint be translated into their language, and that the complaint be -- summons and complaint be sent to a central location, which is usually the consulate, from which formal service is made.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Smith. MS. SMITH: Thank you. CHIEF JUSTICE REHNQUIST: The case is submitted.