Opinion
Case No. A1-05-31.
April 25, 2005
ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND
Before the Court is the Plaintiff's pleading entitled "Response to Defendant's Petition for Removal" filed on March 11, 2005. The Defendants filed a response opposing the motion. For the following reasons, the Plaintiff's request is granted.
I. BACKGROUND
On January 13, 2004, Collection Center, Inc., commenced an action against C.V. Penfield and Carolyn Penfield (Penfields) in the District Court of North Dakota, South Central Judicial District, Burleigh County. It appears that the action was not filed with the state court until August 18, 2004. Collection Center sought to recover monies in excess of $120,000 for medical services provided to C.V. Penfield from 2001 through 2003.
On February 28, 2005, the Penfields removed the action to the United States District Court for the District of North Dakota.See Docket No. 1. The Penfieds petition for removal was predicated upon diversity jurisdiction. 28 U.S.C. § 1332. On March 15, 2005, Collection Center filed a response opposing removal and requesting the Court to dismiss the petition for removal. See Docket No. 4. Collection Center contends that the petition for removal is untimely. The Penfields have filed a brief in opposition to Collection Center's request for remand.See Docket No. 5.
II. LEGAL DISCUSSION
Removal is governed by 28 U.S.C. § 1446 which reads in relevant part as follows:
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.28 U.S.C. § 1446.
Once an action has been removed to federal court it may be remanded back to state court under 28 U.S.C. § 1447(c), which provides that "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)."
In the present dispute, there are two separate allegations of untimeliness, one directed at each party. Collection Center contends that the Penfields' petition for removal was untimely because it was filed beyond the thirty-day time period outlined in 28 U.S.C. § 1446(b). Whereas, the Penfields contend that Collection Corner has failed to file a motion to remand within the thirty-day time period outlined in 28 U.S.C. § 1447(c). If Collection Center is correct, the matter must be remanded back to state court. On the other hand, if the Penfields are correct, the matter must remain in federal court. The Court will address each allegation in turn.
It is undisputed that this action was commenced on January 13, 2004, filed in state court on August 18, 2004, and removed to federal court on February 28, 2005. Under 28 U.S.C. § 1446(b), a defendant may remove a case to federal court within thirty-days of service of the complaint, or within thirty days of service of the summons if the complaint has been filed with the court and the plaintiff is not required to serve it upon the defendant, whichever time period is shorter.
It is well-established that "[f]ederal district courts may exercise removal jurisdiction only where they would have had original jurisdiction had the suit initially been filed in federal court." Krispin v. May Dep't Stores Co., 218 F.3d 919, 922 (8th Cir. 2000); see 28 U.S.C. § 1441. For that reason, 28 U.S.C. § 1446(b) contains an exception to the thirty-day time period. If, based on the initial pleadings, a case is not removable, it may later be removed if the initial pleadings are amended so as to confer jurisdiction upon the federal court. However, with respect to diversity jurisdiction, there is a statutory one-year time period in which the case can be removed. The one-year time period only applies when the case was not removable based on the initial pleadings. See Brown v. Tokio Marine and Fire Ins. Co., 284 F.3d 871, 873 (8th Cir. 2002). In the present dispute, the exception to the thirty-day time period is clearly not applicable. While the Penfields suggest that the complaint did not establish diversity jurisdiction, a plain reading of the complaint indicates otherwise. The complaint stated that Collection Center "is a corporation organized under the laws of North Dakota with its principal place of business as 103 ½ South Third Street, Bismarck, ND 58501." See Defendant's Ex. "B." It goes without saying that the Penfields were aware of their domicile. With that information, the Court is satisfied that the complaint contained sufficient facts to establish diversity jurisdiction. As a result, the Penfeilds' thirty-day time period began to run on the date they were served with a copy of the complaint, namely January 13, 2004. See Plaintiff's Ex. 1. The thirty-day time period would have expired on or about February 13, 2004. The Penfields' petition for removal was not filed until February 28, 2005, which was more than a full year after the prescribed time limit expired. Even relying on the later filing date of August 18, 2004, it is clear that the petition for removal was untimely.
In an attempt to fend off remand, the Penfields contend that Collection Center did not file a formal motion to remand as required under 28 U.S.C. § 1447. While it is true that Collection Center did not caption their pleading as such, it is clear from its text that a remand was the relief being sought. On March 15, 2005, Collection Center filed a document entitled "Response to Defendant's Petition for Removal." The document details why removal is improper under 28 U.S.C. § 1446(b) and "requests this Court to dismiss the Petition [for Removal] and allow this Court to continue in the North Dakota state court system." See Docket No. 4. Thus, the Court will treat Collection Center's pleading as a motion to remand. Having done so, the motion falls well within the thirty-day time period outlined in 28 U.S.C. § 1447(c).
III. CONCLUSION
For the reasons set forth above, the Court GRANTS Collection Center's Motion to Remand (Docket No. 4) and remands this action back to the District Court for the State of North Dakota, South Central Judicial District, Burleigh County.
IT IS SO ORDERED.