Opinion
Civil Action No. 3:05-CV-0068-G.
March 28, 2005
MEMORANDUM OPINION AND ORDER
Before the court is the motion of the plaintiff Laura Mays ("Mays") to remand this action to the state court from which it was removed. For the reasons stated below, the motion is denied.
I. BACKGROUND
Mays filed his original petition in a Texas state court on August 5, 2004. Motion to Remand and Brief in Support ("Motion to Remand") ¶ 5. After efforts between the parties to settle the dispute failed, Mays served the citation and original petition on the Texas Secretary of State on November 15, 2004. Id. ¶ 9. On November 19, 2005, the Secretary of State forwarded a copy of the citation and the original petition to the defendant, RPC Inc. ("RPC"). Id. ¶ 10. The Secretary of State's records indicate that RPC received the citation and petition on November 22, 2004. Id. RPC filed an answer to the original petition on December 10, 2004. Id. ¶ 11.
On December 20, 2004, the state court dismissed the case for want of prosecution. Id. ¶ 12. It appears that the order dismissing the case was based on "a series of clerical errors," which were not the fault of either party. Id. Accordingly, on January 7, 2005, the state court reinstated the action sua sponte. Id.; Defendant RPC Inc.'s Opposition in Response to Laura May's Motion to Remand and Brief in Support ("Response") ¶ 15. On January 10, 2005, RPC filed its notice of removal. See generally Notice of Removal.
II. ANALYSIS
Mays asserts that removal of this action was improper due to a defect in the removal procedure. Motion to Remand ¶ 1. Specifically, Mays asserts that RPC failed to timely file its notice of removal.
"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).
The parties agree that the time to file the notice of removal began on November 22, 2004, when RPC was served by the Secretary of State. Motion to Remand ¶ 2; Response ¶ 1. While both parties assert that the thirty day removal period would expire on December 21, 2004, Motion to Remand ¶ 2; Response ¶ 2, the period would have actually expired on December 22, 2004.
The court assumes that the parties began counting the thirty days by including November 22, 2004 as "Day 1." Rule 6(a) of the Federal Rules of Civil Procedure provides, however, that "[i]n computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included." FED. R. CIV. P. 6(a) (emphasis added). Therefore, the thirty days contemplated by 28 U.S.C. § 1446(b) would not include the date the defendant received the complaint. Thus, in the instant action, November 22, 2004 would not be included in the 30 days and "Day 1" would actually be November 23, 2004. Any references made by the parties to December 21, 2004 as the last date on which the notice of removal could be properly filed should be deemed to refer to the actual expiration date, December 22, 2004.
Mays asserts that RPC failed to timely file the notice of removal, which was required to be filed on or before December 22, 2004. Motion to Remand ¶¶ 2, 17. Mays further argues that the dismissal of the case in the state court on December 20, 2004 had no effect on the thirty day period, because the state court judge "retained plenary power to grant a new trial or to vacate, modify, correct, or reform his judgment within thirty days after the [state court order dismissing the case] was signed." Id. ¶ 18. Therefore, Mays argues, RPC was required to file its notice of removal by December 22, 2004 despite the order dismissing the case in state court.
RPC contends that equitable tolling should be applied to this action, and that, if tolled, the thirty day removal period had not yet expired on January 10, 2005. Response ¶¶ 22-23. While the court agrees that the thirty days should be tolled, the court does not agree with RPC's determination of the dates from which the tolling period would commence. RPC urges that tolling period should begin on December 13, 2004, the date RPC first attempted, albeit unsuccessfully, to remove the action. Id. ¶ 22.
The court finds that the appropriate date from which the tolling period began is the date on which the state court dismissed the action, December 20, 2004. The tolling period ended on the date the state court reinstated the case, January 7, 2004. Mays' argument that the dismissal did not affect the ability of RPC to file a notice of removal is without merit, as there was no case to remove. See Chamberlain v. Amrep, Inc., No. Civ. A 3:04-CV-1776-B, 2004 WL 2324676 at *2 (N.D. Tex. Nov. 18, 2004) (citing Greising v. C.P. Chemical Company, Inc., 646 F.Supp. 553 (D. Minn. 1986)).
Therefore, on December 20, 2004, when the state court dismissed the action, twenty-eight (28) of the thirty days had passed. The state court reinstated the action on January 7, 2005. Motion to Remand ¶ 12. Thus, RPC had until Monday, January, 10, 2004, to file its notice of removal; thus, because of the tolling period, the notice of removal was timely filed.
The thirty days actually ended on January 9, 2005. However, that date fell on a Sunday, so the notice of removal was not required to be filed until the following Monday, January 10, 2005. FED. R. CIV. P. 6(a) ("The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, . . . in which event the period runs until the end of the next day which is not one of the aforementioned days.").