Opinion
Civil Action No. 00-CV-74972-DT
January 4, 2001
Kieran F. Cunningham, Esq.; Brian Gottry, Esq., Stuart J. Rice, Esq.
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR DEMAND
This matter is presently before the court on plaintiff's motion for remand. Defendant has filed a response in opposition. Pursuant to E.D. Mich. LR 7.1(e)(2), the court shall decide this motion without oral argument. Accordingly, the hearing scheduled for January 31, 2001, is canceled.
This is a breach of warranty action concerning equipment purchased by plaintiff from defendant. Plaintiff is a citizen of the State of Michigan, while defendant is a citizen of the State of California. The amount in controversy exceeds $75,000.
Plaintiff filed the complaint in Macomb County Circuit Court on September 20, 2000. Defendant was personally served with process in Los Angeles on October 4, 2000. Defendant removed the case to this court on November 9, 2000. Plaintiff moves for remand on the grounds that the removal notice was filed more than 30 days after defendant was served with process. See 28 U.S.C. § 1446 (b).
In response, defendant argues that plaintiff is estopped from seeking remand on grounds of untimeliness because plaintiffs counsel's secretary misled defendant's counsel as to the date on which defendant was served with process. Documents submitted by both parties indicate that on October 30, 2000, defense counsel Stuart Rice faxed a letter to plaintiff's counsel, Kiernan Cunningham, and asked "if you could provide my office with the date on which the papers were served on Basic so that I can file timely responsive pleadings." In response, Mr. Cunningham's secretary telephoned Mr. Rice that day and told him that defendant had been served with process on October 12, 2000. In fact, however, the process server's Affidavit of Service was simply notarized on October 12, 2000; the same Affidavit of Service indicates that defendant was served with process on October 4, 2000. The removal notice was filed on November 9 — more than 30 days after the date when defendant was actually served with process, but less than 30 days after the date of service as communicated by plaintiffs counsel's secretary.
A defendant that wishes to remove a civil action from state to federal court is statutorily required to file the notice of removal "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 strict time requirement for removal in civil cases is not jurisdictional; rather, `it is a strictly applied rule of procedure and untimeliness is a ground for remand so long as the timeliness defect has not been waived.'" Seaton v. Jabe, 992 F.2d 79, 81 (6th Cir. 1993), quoting Northern Illinois Gas Co. v. Indus. Gases, 676 F.2d 270, 273 (7th Cir. 1982). Further, the court must strictly construe removal notices and resolve all doubts in favor of remand. See Her Majesty The Queen v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989).
In the present case, defendant argues that plaintiff is estopped from seeking remand based on the untimeliness of the removal notice because defendant's counsel "reasonably relied upon the information supplied by the offices of [plaintiff's] counsel." While the court sympathizes with defendant's plight, the cases defendant cites are inapposite. The circumstances of this case cannot be compared to cases in which plaintiff fails to file a timely motion for remand, or in which agreement to a forum selection clause has been fraudulently obtained, or in which plaintiff fraudulently joins a non-diverse defendant in an attempt to defeat diversity jurisdiction. The simple fact of the matter is that defendant missed the statutory 30-day deadline for filing the removal notice. If Mr. Cunningham had exclusive control over the information sought by Mr. Rice, the court might have to afford some equitable relief when that information is miscommunicated, whether by accident or by design. However, Mr. Rice had means of verifying the service date other than by turning to plaintiffs counsel. Even if Mr. Rice's client could not recall the date of service, the date could have been determined by reviewing the state court file. The process server's Affidavit of Service was received by the Macomb County Clerk on October 23, 2000 — a full week before Mr. Rice faxed his inquiry to opposing counsel.
Mr. Rice avers that he "conferred with both the principal of Basic, William F. Wolf, and Basic's California attorney, Steven Fisher, as to the date of service and neither of said parties knew or recalled the exact date the papers were served." Affidavit of Stuart J. Rice, ¶ 6. Perhaps the moral of the story is that the client should take care to note the date of service and to notify an attorney promptly. The defendant's failure to do either of these things cannot serve as a basis for disregarding the 30-day removal deadline or for defeating plaintiffs right to assert a timely objection to procedural defects in the removal.
The court finds that the removal notice was not filed within the 30-day period prescribed by statute, and that plaintiff has not waived its right to move for remand. Accordingly,
IT IS ORDERED that plaintiffs motion for remand is granted.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1447 (c), this matter is hereby remanded to the Circuit Court for the County of Macorub, State of Michigan.