Monsanto Company; Pharmacia, LLC; Solutia, Inc. v. Magnetek, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 24-1230
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Monsanto Company; Pharmacia, LLC; Solutia, Inc.
Plaintiffs - Appellees
v.
Magnetek, Inc.
Defendant
General Electric Company; Paramount Global
Defendants - Appellants
Kyocera AVX Components Corporation
Defendant
Cornell Dubilier Electronics, Inc.
Defendant - Appellant
The Gillette Company, LLC
Defendant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 26, 2024
Filed: January 22, 2025
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Before SMITH, ERICKSON, and STRAS, Circuit Judges.
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ERICKSON, Circuit Judge.
Monsanto Company, Pharmacia, LLC, and Solutia, Inc. (collectively,
“Monsanto”) commenced an action in St. Louis County Circuit Court in Missouri
against Magnetek, Inc., General Electric Co. (“GE”), Paramount Global,
KYOCERA AVX Components Corporation, Cornell Dubilier Electronics, Inc., and
The Gillette Company LLC (collectively, “Defendants”) relating to Polychlorinated
Biphenyls (“PCBs”) that Monsanto manufactured and sold to Defendants or their
predecessors-in-interest. 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.
Defendant GE removed the action to federal court, asserting jurisdiction under the
federal officer removal statute, 28 U.S.C. § 1442(a)(1). The district court granted
Monsanto’s motion to remand, finding removal was untimely. Having jurisdiction
under 28 U.S.C. § 1447(d), see BP P.L.C. v. Mayor & City Council of Baltimore,
593 U.S. 230 (2021), we vacate the remand order and remand for further
proceedings.
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

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matter, and (2) acknowledge the date of service of the First Amended Petition on
General Electric as January 31, 2023.” In the next paragraph, counsel agreed that
“under Missouri Supreme Court Rule 55.25 General Electric’s responsive pleading
to the First Amended Petition would be due within 30 days of January 31, 2023.”
The parties, however, agreed, subject to Court approval, to extend GE’s deadline for
filing a responsive pleading to on or before March 31, 2023. On January 6, 2023,
Monsanto filed the acknowledgement and waiver of service in the state court action.
On February 20, 2023, GE filed its notice of removal in the Eastern District
of Missouri. On March 21, 2023, Monsanto moved to remand the action, asserting
GE’s deadline for removing the case to federal court was February 6, 2023 (30 days
after the waiver of service was filed in state court). The district court agreed with
Monsanto and found GE’s removal was untimely. GE appeals.
The United States Supreme Court has recognized that service of process is
“fundamental to any procedural imposition on a named defendant.” Murphy Bros.,
Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Section 1446(b), of
Title 28 of the United States Code, provides that a petition to remove a civil action
must be filed within 30 days “after the receipt by the defendant, through service or
otherwise,” of a copy of the pleading setting forth a claim for relief. The procedural
requirements set forth in § 1446 are waivable. See Fin. Timing Publ’ns, Inc. v.
Compugraphic Corp., 893 F.2d 936, 939 (8th Cir. 1990) (rejecting plaintiff’s claim
that the district court lacked subject matter jurisdiction due to defendant’s failure to
remove the action within 30 days of receipt of the summons and complaint based, in
part, on evidence that plaintiff waived its claim by agreeing it would not contest or
object to removal on timeliness grounds); Koehnen v. Herald Fire Ins. Co., 89 F.3d
525, 528 (8th Cir. 1996) (noting a procedural defect in removal may be waived and
does not affect the federal court’s subject matter jurisdiction).
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

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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. None of the cases cited by the dissent 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. See Murphy
Bros., 526 U.S. at 354-56 (stating the date of service is the “starter for § 1446(b)’s
clock”). 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.
For the foregoing reasons, we vacate the district court’s order of remand. We
decline Monsanto’s request to decide an issue not addressed by the district court—
whether GE satisfies the government contractor requirement of 28 U.S.C.
§ 1442(a)(1)—and hereby remand this case to the district court for further
proceedings consistent with this opinion.
SMITH, Circuit Judge, dissenting.
On January 5, 2023, GE executed a document that “hereby . . . waive[d] the
necessity of personal service under Missouri Supreme Court Rule 54.13(c).” R. Doc.
1-14, at 6. This document also identified a future effective service date by
acknowledging the date of service of the complaint as January 31, 2023. Id. Further,
the document “waive[d] any and all objections to the form, time, and sufficiency of
service.” Id. Monsanto filed the waiver in state court on January 6, 2023. GE
removed this action to federal court on February 20, 2023—46 days after they
waived service but only 20 days after the future effective service date within the
waiver.

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A party has 30 days from the date they receive the complaint “through service
or otherwise” to remove a state court action to federal court. 28 U.S.C. § 1446(b)(1).
“[A] defendant must file a notice of removal within 30 days of one of the statute’s
triggering events.” Dalton v. Walgreen Co., 721 F.3d 492, 493 (8th Cir. 2013) (per
curiam). Removal statutes are strictly construed, and all questions regarding removal
should be resolved in favor of state court jurisdiction. See Syngenta Crop Prot., Inc.
v. Henson, 537 U.S. 28, 32 (2002); see also Dahl v. R.J. Reynolds Tobacco Co., 478
F.3d 965, 968 (8th Cir. 2007); In re Bus. Men’s Assur. Co. of Am., 992 F.2d 181,
183 (8th Cir. 1993) (per curiam). The party seeking removal bears the burden to
show removal was proper. In re Bus. Men’s Assur. Co., 992 F.2d at 183; see also
Nessel v. Enbridge Energy, LP, 104 F.4th 958, 964 (6th Cir. 2024) (noting this
burden in the context of timeliness of removal under § 1446).
Waivers of service trigger the 30-day removal clock, and GE concedes that
point. See Reply Br. 14–15. In Murphy Brothers, Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344 (1999), the Supreme Court held that the removal period starts
with service of both the summons and complaint, not merely by receipt of a courtesy
copy of the complaint unaccompanied by service. Id. at 347–48. Murphy Brothers
did not involve a waiver of service. In fact, the Court distinguished waivers from
normal service rules. See id. at 351 (“Unless a named defendant agrees to waive
service, the summons continues to function as the sine qua non directing an
individual or entity to participate in a civil action or forgo procedural or substantive
rights.”); id. at 350 (“In the absence of service of process (or waiver of service by
the defendant), a court ordinarily may not exercise power over a party the complaint
names as defendant.”). Since Murphy Brothers, several courts have held that waivers
of service trigger the 30-day removal clock. See, e.g., Di Loreto v. Costigan, 351 F.
App’x 747, 751 (3d Cir. 2009) (unpublished) (“[T]he removal period for a defendant
does not begin to run until that defendant is properly served or until that defendant
waives service.”); Brown v. Bristol-Myers Squibb Co., No. CIV A 402CV301LN,
2002 WL 34213425, at *2 (S.D. Miss. Nov. 2, 2002) (“Following Murphy Brothers,
numerous courts have recognized that the relevant date for gauging timeliness of

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removal is the date on which proper service was effected or, if there has been no
proper service, the date on which objections to the sufficiency of process or service
of process are waived.”); Vertex Energy Operating, LLC v. Penthol LLC, No. 4:20-
cv-390, 2021 WL 4538484, at *1 (S.D. Tex. Jan. 29, 2021).
The language of the statute agrees. Section 1446(b)(1) of 28 U.S.C. gives 30
days to remove beginning with the receipt of the complaint “through service or
otherwise.” A waiver of service is the “otherwise” that triggers the 30-day removal
clock. Murphy Brothers sets waivers apart from normal service rules regarding
removal. GE waived service and objections to service on January 5, which triggered
the 30-day removal clock. GE had to file the notice of removal within 30 days of
that triggering event. See Dalton, 721 F.3d at 493. GE’s attempted removal 46 days
after waiving service was untimely.
GE contends that the issue is not whether waivers trigger the removal clock
but rather when service was effective under the terms of the waiver. See Reply Br.
15. GE’s waiver (1) waived service but (2) also set January 31, 2023, as the future
effective date of service. Thus, GE argues that their removal was timely because it
was within 30 days from the future effective date of service within the waiver.
GE’s argument should fail because parties cannot stipulate a future effective
date of service that would extend the mandatory 30-day removal period. See Nicola
Prods. Corp. v. Showart Kitchens, Inc., 682 F. Supp. 171, 173 (E.D.N.Y. 1988)
(“[A]bsent waiver or estoppel, the thirty day period cannot be extended by court
order, stipulation of the parties, or otherwise.”); Harris Corp. v. Kollsman, Inc., 97
F. Supp. 2d 1148, 1151 (M.D. Fla. 2000); Grusofski v. Speedway LLC, No. CV 24-
474, 2024 WL 3226859, at *6 (W.D. Pa. June 27, 2024). The 30-day removal period
is mandatory. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1212 (9th Cir. 1980)
(per curiam); see also Dalton, 721 F.3d at 493. Though 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

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federal court jurisdiction,1 the parties themselves cannot stipulate to extend the
mandatory 30-day removal period. See Nicola Prods. Corp., 682 F. Supp. at 173.
The removal period was triggered on January 5 when GE’s counsel executed
a document that “waive[d] the necessity of personal service” and “further waive[d]
any and all objections to . . . service.” R. Doc. 1-14, at 6. 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. This is especially true where the party with the
burden has provided no authority holding that parties can stipulate to future effective
service dates that purport to expand the removal period.
The removal period commenced on January 5 when GE “waive[d] . . . service”
and waived all objections to service. See R. Doc. 1-14, at 6. Therefore, GE’s removal
1See, e.g., Fin. Timing Publ’ns, Inc. v. Compugraphic Corp., 893 F.2d 936,
939–41 (8th Cir. 1990); Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528–29 (8th
Cir. 1996). In Financial Timing Publications, Inc., the plaintiff promised to not
object to removal on timeliness grounds and participated in litigation at the district
court before objecting to removal on timeliness grounds. 893 F.2d at 940. The court
held that the plaintiff waived its objections to the timeliness of removal through these
actions. Id. at 941. In Koehnen, the court found that the plaintiff consented to federal
jurisdiction by affirmatively seeking leave to file a new complaint in federal court
before they filed a motion to remand, vigorously arguing in favor of that motion to
file a new complaint, and only pressing for remand after they lost the other motion.
89 F.3d at 528. The court said that the plaintiff waived the right to seek remand
because of his prior affirmative conduct in federal court. Id. at 529.
Here, Monsanto and GE never discussed removal prior to this dispute, and
Monsanto’s first action in federal court was to challenge removal on timeliness
grounds. Thus, Monsanto did not engage in any affirmative conduct that could be
construed as a waiver of their timeliness objection.

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on February 20 was untimely because it occurred more than 30 days after it waived
service on January 5.
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