Summary
holding that the “thirty day period in which defendant can remove commences on defendant's actual receipt of a copy of the pleading”
Summary of this case from Holden v. Serco Inc.Opinion
Civil Action No. 96-1186.
July 3, 1996.
Larry A. Roach, Lake Charles, LA, for plaintiff.
Lauren A. Welch, New Orleans, LA, for defendant.
MEMORANDUM RULING
Before the court is plaintiff's motion to remand (doc. # 5). Plaintiff alleges that removal was not timely effected.
"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, . . ." 28 U.S.C. § 1446(b) (emphasis added).
Here, plaintiff filed suit in state court on March 27, 1996. Defendant was served through the Louisiana Secretary of State on April 9, 1996. The Notice of Removal was filed on May 10, 1996. Defendant received a copy of plaintiff's initial pleading sometime between April 10, 1996 and May 10, 1996. Service upon the Secretary of State does not commence the thirty day removal period. Skinner v. Old Southern Life Ins. Co., 572 F. Supp. 811, 812-13 (W.D.La. 1983). Instead, the thirty day removal period begins when the named defendant actually receives a copy of the initial pleading. Id.
In its amended Notice of Removal, defendant, Unum Life Insurance Company, states that it did not receive a copy of the petition until May 16, 1996. This is in error. A copy of the state court petition was filed with the notice of removal, as required by 28 U.S.C. § 1446(a). Moreover, on April 10, the Secretary of State forwarded the citation to Unum, via mail.
As stated previously, sometime between April 10, and May 10, 1996, Unum Life Insurance Company received a copy of the state court petition. The exact date is immaterial; under any scenario, removal was effected within thirty days, and was timely.
In accordance with the foregoing, plaintiff's motion to remand is DENIED. Plaintiff's request for attorney's fees and costs is likewise DENIED.