Opinion
Civil No. 02-4248 (DWF/RLE)
April 11, 2003
Frank J. Rajkowski, Esq., Rajkowski Hansmeier, St. Cloud, Minnesota, for Plaintiff.
Thomas E. Emmer, Jr., Esq., Emmer Lively, Maple Plain, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter came on for hearing before the undersigned United States District Judge on March 14, 2003, pursuant to Plaintiff's Motion to Remand. Although the Complaint does not specify whether the action is one for declaratory judgment, for breach of contract, or both, the underlying dispute between the parties involves Defendant's obligation to defend and indemnify Plaintiff, pursuant to a homeowner's insurance policy written by Defendant, in a personal injury lawsuit brought against Plaintiff. For the reasons set forth below, Plaintiff's motion is granted.
Background
Plaintiff Kenneth Jambor ("Jambor") and his wife obtained a homeowner's insurance policy from Defendant Selective Insurance Company ("Selective") in connection with property in the State of Pennsylvania. Selective is a South Carolina corporation, with its principal place of business in the State of New Jersey.
On July 7, 2001, in the State of Minnesota, Jambor discharged a bottle rocket at a gathering. The bottle rocket struck Mark Pogreba, causing him injury. Mark Pogreba brought suit against Jambor, alleging negligence and seeking damages for his injury. Jambor tendered the defense of that lawsuit to Selective. Selective denies that Jambor is entitled to defense or indemnification for any potential liability relating to the Pogreba lawsuit.
On August 6, 2002, Jambor served a Summons and Complaint on Selective at Selective's North Carolina office. Selective referred the matter to David L. Clark ("Clark"), a senior official with responsibility for Minnesota. Clark asserts that, upon receiving the Summons and Complaint, he twice called counsel for Jambor and was told-by counsel's "assistant"-that the Summons and Complaint were courtesy copies, and no answer was necessary.
At some point after August 6, 2002, but before September 10, 2002, counsel for Jambor notified Clark that Selective was in default for failing to answer the Summons and Complaint. Clark sent a letter, dated September 10, 2002, to counsel for Selective. In that letter, Clark directs counsel for Selective to answer the Summons and Complaint. Clark also indicates that, sometime between August 6 and September 10, Selective filed a parallel declaratory judgment action in Pennsylvania.
Jambor filed his Complaint in the Minnesota District Court for Todd County on September 24, 2002.
On November 4, 2002, Selective served and filed a Notice to Remove to Federal Court pursuant to 28 U.S.C. § 1332(a)(1). On November 14, 2002, Jambor filed a document styled as "objections" to the Notice of Removal; in the objections, Jambor noted that the Notice of Removal was not timely.
Jambor filed the instant Motion to Remand on January 10, 2003.
Discussion
Jambor's Motion to Remand is predicated upon his assertion that the Notice of Removal was untimely. Pursuant to 28 U.S.C. § 1446(b), a notice of removal in a civil action must be filed within 30 days after service of the initial pleading or summons on the defendant. Thus, in the instant case, Selective had until September 5, 2002, to file a Notice of Removal. The Notice of Removal was untimely.
Selective seems to argue that its time to remove the matter was tolled because of the alleged representations of the assistant to Jambor's counsel that the Summons and Complaint did not require an answer. This argument is specious at best. First, the Court cannot conceive that any attorney, or even any pro se litigant, would rely for legal advice upon the representations of a non-lawyer assistant in opposing counsel's office, particularly when the clear language on the face of the Summons and Complaint flatly contradicted those representations. Second, and more importantly, there is no question that Selective knew that the Summons and Complaint were "real" as of September 10, 2002, when Clark sent a letter to Selective's counsel directing Selective to answer the Summons and Complaint. Taking, then, September 24, 2002 — the date on which Jambor filed the Summons and Complaint with the state court — as the outside date from which the 30-day removal period began to run, the statutory time in which to file the Notice of Removal expired on October 24, 2002, 11 full days before Selective did, in fact, file the Notice of Removal.
However, as Selective notes, 28 U.S.C. § 1447(c) requires that a motion to remand based on any defect other than lack of subject matter jurisdiction be filed within 30 days of the notice of removal; procedural defects in a notice of removal, such as untimeliness, may be waived by a plaintiff sitting on his rights. In the instant case, the Notice of Removal was filed on November 4, 2002, but the Motion to Remand was not filed until January 10, 2003. The Motion to Remand, also, was untimely.
Jambor responds that, although he did not file the Motion to Remand within the statutory time period, he did file with the Court a notice of "objections" to the Notice of Removal. Jambor explains that
Plaintiff's objection was not captioned as a `motion' because it was Plaintiff's understanding that there was not yet a federal court `action' for which a motion would be necessary. Rather, Plaintiff was under the belief that by filing a prompt objection to Defendant's notice based on Defendant's failure to comply with 28 U.S.C. § 1446(b), the Court would refuse to hear the matter.
Plaintiff's Reply Brief in Support of Motion to Remand at 1. Indeed, Jambor seems quite put out that "[t]he Court did not rule on this objection, and the matter has been placed on the Court's docket." Plaintiff's Memorandum of Law in Support of Motion to Remand to State Court at 1. Jambor fundamentally misapprehends the law and process of removal. The removal statute, 28 U.S.C. § 1446(d), provides that a defendant that has filed of notice of removal shall give notice to the parties and the State court. Such notice filed with the State court "shall effect the removal and the State court shall proceed no further unless and until the case is remanded."
The removal is effected without any affirmative action on the part of the Federal court. Unlike the procedure for removal of a criminal prosecution described in 28 U.S.C. § 1446(c)(4), a notice of removal in a civil action does not trigger a review by the Federal court absent a motion to remand. Jambor's "objections" were filed with the Court, but in the absence of a notice of motion, those objections were simply filed and tucked away on a shelf of the Clerk's office and did not trigger any sort of review. Frankly, the Court is dumbstruck by Jambor's blithe assertion that his procedurally defective "objections" to the Notice of Removal should have prompted some sort of action on the part of the Court.
Ultimately, the Court must untangle this snarl of clumsy lawyering to determine which party's error was least egregious. Because Jambor did raise the timeliness issue within 30 days of the Notice of Removal, albeit in an improper form, the Court cannot find that Jambor waived the right to raise the timeliness issue by his failure to bring a timely and procedurally appropriate Motion to Remand. Accordingly, the Court finds that, while Jambor's motion is untimely, his claim that the Notice of Removal was procedurally defective should be allowed. Moreover, Selective has not raised any legitimate justification for its own untimeliness in filing its Notice of Removal, and, thus, the Motion to Remand should be granted.
For the reasons stated, IT IS HEREBY ORDERED:
1. Plaintiff's Motion to Remand (Doc. No. 9) is GRANTED and this action is remanded to Todd County District Court for the State of Minnesota.