Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 12 (1999)

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Cite as: 526 U. S. 344 (1999)

Opinion of the Court

within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based."

Rule 81(c) sensibly has been interpreted to afford the defendant at least 20 days after service of process to respond. See Silva v. Madison, 69 F. 3d 1368, 1376-1377 (CA7 1995). In Silva, the Seventh Circuit Court of Appeals observed that "nothing . . . would justify our concluding that the drafters, in their quest for evenhandedness and promptness in the removal process, intended to abrogate the necessity for something as fundamental as service of process." Id., at 1376. In reaching this conclusion, the court distinguished an earlier decision, Roe v. O'Donohue, 38 F. 3d 298 (CA7 1994), which held that a defendant need not receive service of process before his time for removal under § 1446(b) begins to run. See 69 F. 3d, at 1376. But, as the United States maintains in its amicus curiae brief, the Silva court "did not adequately explain why one who has not yet lawfully been made a party to an action should be required to decide in which court system the case should be heard." Brief for United States as Amicus Curiae 13, n. 4. If, as the Seventh Circuit rightly determined, the "service or otherwise" language was not intended to abrogate the service requirement for purposes of Rule 81(c), that same language also was not intended to bypass service as a starter for § 1446(b)'s clock. The fact that the Seventh Circuit could read the phrase "or otherwise" differently in Silva and Roe, moreover, undercuts the Eleventh Circuit's position that the phrase has an inevitably "plain meaning." 6

6 Contrary to a suggestion made at oral argument, see Tr. of Oral Arg. 6-7, 28 U. S. C. § 1448 does not support the Eleventh Circuit's position. That section provides that "[i]n all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has

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