Summary
holding receipt of a draft complaint is insufficient to trigger the removal deadline under 1446(b)
Summary of this case from J.G. Wentworth S.S.C. v. ShermanOpinion
Civil Action No. 99-2931.
September 21, 1999.
MEMORANDUM AND ORDER
This employment discrimination action was commenced by filing a praecipe for a writ of summons in the Court of Common Pleas of Lehigh County on March 25, 1999. Prior to this time, on March 11, 1999, based upon conversations between them, defense counsel wrote to plaintiff's former counsel and made reference to the fact that federal claims would be included in the complaint. On May 3, 1999, plaintiff's counsel forwarded a draft copy (or, as plaintiff refers to it, an "unfiled copy") of the complaint to defense counsel. Plaintiff filed his complaint on May 14, 1999 and served it upon defense counsel on May 17, 1999. Defendant filed a notice of removal on June 9, 1999, which is 26 days after the filing of the Complaint and 23 days after service thereof, but more than 30 days after defendant received the draft copy of the complaint which contained federal claims.
Plaintiff has moved to remand, relying on Third Circuit caselaw holding that defendants must "file their Notices of Removal within thirty days after receiving a writ of summons, praecipe or complaint which in themselves provide adequate notice of federal jurisdiction." See Foster v. Mutual Fire, Marine Inland Ins. Co., 986 F.2d 48, 54 (3d Cir. 1993). Plaintiff contends that the defendant's receipt of the proposed complaint triggered the time limit contained in 28 U.S.C. § 1446(b), and looks for support to the language of that section, which states: "The notice of removal of a civil action or proceedings 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 proceedings is based . . ." (emphasis added). As both parties recognize, the United States Supreme Court recently rejected the "receipt rule" (i.e. the notion that the time limit begins to run on receipt of a copy of the complaint, however informally, rather than upon formal service thereof) and held that "a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, `through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., ___ U.S. ___, ___, 119 S.Ct. 1322, 1325 (1999). That case involved a situation where defense counsel was faxed a time-stamped copy of a complaint, but was not formally served until later.
Defendant believes that Murphy Bros. is dispositive in this case, and that the time period did not begin to run before formal service of the complaint. Plaintiff, on the other hand, argues that Murphy Bros. did not overrule Foster and its ilk because it was based on Alabama law, and no court has yet interpreted Murphy Bros. with regard to Pennsylvania law. Murphy Bros. is clearly an interpretation of § 1446(b) and not of state law; nevertheless, the Court was concerned in that case that "service of process" had not occurred. Here, however, defendant did receive "service of process" — the writ of summons — and thus there was formal service by which defendant was made party to a lawsuit, even if what was served did not itself alert defendant to the existence of federal claims. (Neither party claims that the writ of summons, on its face, revealed any basis for federal jurisdiction.)
In Murphy Bros., the Court outlines four scenarios based on variations in state law:
First, if the summons and complaint are served together, the 30-day period for removal runs at once. Second, if the defendant is served with the summons but the complaint is furnished to the defendant sometime after, the period for removal runs from the defendant's receipt of the complaint. Third, if the defendant is served with the summons and the complaint is filed in court, but under local rules, service of the complaint is not required, the removal period runs from the date the complaint is made available through filing. Finally, if the complaint is filed in court prior to any service, the removal period runs from the service of the summons.
U.S. at ___, 119 S.Ct. at 1328-29. The situation in this case is analogous to scenario number two: the writ of summons was filed and served, and thereafter the defendant was "furnished" with a complaint. If defendant was indeed furnished with "the complaint," then plaintiff is correct and the action was not timely removed. The precise issue to be decided, then, is whether receipt of a draft or unfiled complaint is sufficient to trigger § 1446(b). For several reasons, I conclude that what defendant received was not "the complaint." First, it is worth noting that a draft complaint may well undergo substantial revision before being filed. More importantly, if defendant had removed this action prior to the filing of a complaint, all that would have accompanied the notice of removal to federal court would have been a writ of summons disclosing no basis for federal jurisdiction. Since the inquiry under § 1446(b) is confined to the four corners of the pleading, this court would have been obliged to grant a motion for remand. See Foster, supra, 986 F.2d at 53-54.
Plaintiff's motion for remand will be denied. An Order follows.
ORDER
AND NOW, this ___ day of August, 1999, IT IS ORDERED:
1. Plaintiff's motion for remand is DENIED.
2. Plaintiff shall respond to defendant's motion to dismiss within seventeen (17) days.
3. Plaintiff's motion to defer consideration of defendant's motion to dismiss is DISMISSED AS MOOT.