Opinion
CIVIL ACTION No. 03-0376, SECTION "C" (2).
May 19, 2003.
Order and Reasons
John S. Goehring, a third year law student at Tulane Law School, assisted in the research and preparation of this decision.
This matter comes before the Court on motion to remand filed by plaintiff and motion to dismiss filed by defendant Delta Air Lines (Delta). Having considered the record, the memoranda of counsel, and the law motion to remand is GRANTED for the following reasons.
In light of the remand, the motion to dismiss filed by Delta is not ruled on.
BACKGROUND
This action, removed from Louisiana State Court to this Court, concerns tort law claims seeking damages relating to injuries allegedly sustained by the plaintiff while on board a Delta plane on January 2, 2002. Plaintiff alleges that he boarded a Delta plane in New Orleans, flew to Atlanta and transferred to a different Delta flight bound for Florida. While the passengers were aboard, the flight was delayed in Atlanta at the gate and on the runway for approximately eight hours, throughout which time the passengers were admonished not to leave their seats even to stretch their legs or use the restroom. Allegedly as a result of this long period of immobility, a blood clot developed in the left leg of the plaintiff. The blood clot later became dislodged and traveled to the plaintiff's lung where it developed into a pulmonary embolus, requiring hospitalization.
The plaintiff filed the lawsuit in state court in December of 2002. The sheriff's return of service of process indicates service on Janet Robert (Robert) with Corporation Service Company (CSC), Delta's agent for service of process, occurred on January 7, 2003. Delta filed and served a notice of removal on February 7, 2003, thirty one days after service of process. Plaintiff moves to remand, alleging untimely removal, lack of federal question jurisdiction, and lack of diversity jurisdiction.
Motion to Remand — Untimely Removal
The defendant opposes the motion to remand by disputing the actual date of service. Delta claims service occurred on January 8, making the February 7 removal timely. The sheriff's return of service indicates January 7 as the date of service, and the deputy sheriff who gave service confirmed this date in a sworn affidavit of service. The defense provides an affidavit by Richard Selwood, service of process manager with CSC, stating that CSC records indicate that CSC was personally served on January 8, on behalf of Delta. That record was prepared by Robert, whose sworn statement was not provided.
"A notice of removal may be filed within thirty days after receipt by the defendant, though 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 may become removable" 28 U.S.C. § 1446(b). See T.H. Inc. v. Investors, 42 F.3d 235 (5th Cir. 1995) (held notice of removal filed more than thirty days after receipt by of copy of initial pleading was untimely under general removal statute). If service occurred on January 7, then the thirty days had expired before February 8, the date the defendant filed a Notice of Removal. As the defendant notes in its opposition to the motion to remand, a sheriff's return is presumed to be prima facie correct, though "the court, at any time and upon such terms are just, may allow process or proof of service to be amended." Louisiana Code of Civil Procedure art. 1292. Defendant also cites Louisiana case law holding that while the "return of a sheriff is given great weight," it can be overcome by clear and convincing evidence, and a return cannot be overcome by the uncorroborated testimony of a single witness." Citibank (South Dakota) N.A. v. Keaty, 599 So.2d 500, 501 (La.App. 3 Cir. 1992). This implies that corroborated testimony of a non-party could be sufficient.
This Court is not persuaded by Defendant's argument that CDC's affidavit is "clear and convincing," nor does it find that Keaty is applicable. The service date of January 7 is supported not only by the sheriff's return of service, which is prima facia correct, but also by the affidavit of the deputy sheriff who served CDC. These are two testaments of service provided by a disinterested sheriff with personal knowledge. By contrast, the affidavit of CDC was provided not by Robert in the Baton Rogue office who received service and prepared the record, but rather by the CSC manager, a resident of Delaware. The CDC affidavit relies not on personal knowledge but on "our records," and makes no attempt to explain how or why the deputy sheriff could be mistaken about when service occurred. This evidence is not "clear and convincing" and thus cannot overcome the prima facia correctness of the January 7 date given in the sheriff's return of service.
The facts of this case are not analogous to Keaty. In Keaty, the sheriff's return of service indicated that Keaty was served at her home in Lafayette. Keaty claimed she was with an acquaintance in New Orleans on the alleged day of service, and the acquaintance corroborated that claim. That court found this testimony sufficient to overcome the presumption of correctness of the sheriff's return. Counsel for defendant argues that CDC's affidavit corroborates the claim of defendant Delta that service did not occur until January 8, and thus the rule in Keaty should apply. These facts are distinguishable, however. Keaty involves two statements by the defense — one statement by the party served, and a second corroborating statement by a witness. Here, the defense provides only one statement — that of CDC. Furthermore, CDC cannot possibly be a corroborating witness because it is the agent that receives service on behalf of Delta. In other words, CDC cannot be a corroborating witness to service upon itself. The affidavit is therefore insufficient under Keaty. (A sheriff's return of service "cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer." Id.) For Keaty to be analogous, a witness separate from CDC would have to testify that service occurred on January 8, 2003. The defense offers no such evidence.
The Court does not find that even had a corroborating witness been provided that that necessarily would have overcome the prima facia correctness of the sheriff's return.
The defense argues that the plaintiff is estopped from asserting that removal is untimely. On January 23, 2003, midway between the thirty day window for filing for removal, counsel for Delta corresponded with plaintiff's counsel regarding an extension of time to respond to the lawsuit. In this correspondence, counsel for Delta stated that the date of service was January 8, and counsel for plaintiff did not correct this "error." Therefore, the defendant argues, the plaintiff must be estopped from claiming that service occurred on January 7 and must not be allowed to "lay in wait" and then take advantage of the error. The Court is not persuaded by this argument. The correspondence at issue was about the response to the complaint, not removal; the plaintiff cannot be said to "lay in wait" for untimely notice of removal when the defendant gave no indication it would seek removal.
Over thirty days passed between the date of service indicated on the sheriff's return and the date of filing of a notice of removal. The correctness of the sheriff's return of service is not overcome by clear and convincing evidence, and equity does not demand that the plaintiff be estopped from asserting that removal is untimely. In so ruling, the court is mindful that removal jurisdiction is strictly construed. See: Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941); Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979).
Because removal is untimely, the court declines to rule on the issues of federal question jurisdiction and diversity jurisdiction.
Accordingly,
IT IS ORDERED that the motion for remand filed by plaintiff is GRANTED. This matter is hereby REMANDED to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana.