28 U.S.C. § 1448 governs the requirements of process after removal, providing that when defendants are not completely or perfectly served prior to removal, plaintiffs may complete such process or service, or new process may be issued in the same manner as in cases originally filed in the district court. There remains an open question as to whether state court service issued prior to removal, but served after removal, retains its efficacy in federal court under § 1448. This open question has led to divergent interpretations among district courts, with differing consequences. As of this Note’s publication, at least twenty-seven district courts and one circuit court have grappled with this question and reached various interpretations of § 1448: at least twelve courts have analyzed the text of § 1448 and concluded that state court process after removal is not permitted under § 1448, and at least eleven have concluded the opposite—that state court process should retain its efficacy after removal. At least six courts are somewhere in the middle.
This Note explores these different interpretations and attempts to resolve the open question of § 1448 in advocacy of permitting completion of state court service of process after removal. The Note attempts to link the different district and circuit court opinions through the themes of federalism, statutory interpretation, notice provided to the defendant through service, and priority of the Federal Rules of Civil Procedure after removal. Ultimately, this Note concludes that these goals are furthered through completion of state court service of process after removal under § 1448, and posits a solution under Rule 4(m) that would ensure plaintiffs’ cases are heard on the merits, rather than the technicalities of removal procedure.