Opinion
CIVIL ACTION NO. 01-1720
July 17, 2002
ORDER AND REASONS
I. Background
On April 26, 2002, plaintiffs filed a petition for damages against the defendants, Travelers Insurance Company (Travelers) and Virginia M. Martin (Martin), in Civil District Court for the Parish of Orleans, State of Louisiana. Citation of plaintiffs' petition was served on Travelers on May 3, 2002. Service of citation on Martin had not been perfected at this time. On July 15, 2002, this Court filed a Minute Entry ordering that service be performed on defendant Martin or risk the dismissal of said defendant from the proceedings.
On June 6, 2002, Travelers filed a Petition for Removal, claiming this Court has original jurisdiction based on complete diversity between the plaintiffs and the defendants. The Petition for Removal does not state whether Martin consents to the removal. Diversity of citizenship is the only basis for removal stated in the Traveler's Petition for Removal. Plaintiffs have not waived the time limits imposed by law for removal of this matter to federal court. Plaintiffs now seek to have this matter remanded to state court alleging that removal of this matter is untimely and improvident.
II. Legal Analysis
The relevant procedural requirements for removal are contained in 28 U.S.C. § 1446(b) which states,
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, or within thirty days after the service of the summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, which ever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through 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 in which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than one year after the commencement of this action.
"While the time limitation for removal is not jurisdictional, and, therefore, may be waived, failure to petition for removal within thirty days may render removal improvident . . ." Brown v. Demco, 792 F.2d 478, 481 (5th Cir. 1986). However, in the absence of waiver to the time limit by the plaintiff or some equitable reason why the time limit should not be applied, a defendant who does not petition for removal within the thirty day time limit loses his right to do so. Id.
Additionally, "[i]n cases involving multiple defendants, the thirty day period begins to run as soon as the first defendant is served (provided that the case is then removable)" Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1263 (5th Cir. 1988). An extension of time to file responsive pleadings in a state court proceeding does not toll the time limit for petitioning for removal. Oldland v. Gray, 179 F.2d 408 (10th Cir. 1950), cert. den. 339 U.S. 948, 70 S.Ct. 803, 339 L.Ed. 1362. In circumstances when service of citation is made through an agent for service appointed by the defendant, the time period for filing a petition for removal begins when the agent is served. Luce v. Lloyd's of London, 868 F. Supp. 625 (D. Vt. 1994).
In the instant matter, multiple parties are involved and Travelers is the first party to be served with the state court petition. Travelers has admitted to receiving service of process on May 3, 2002. Travelers did not petition for removal until June 6, 2002, more than thirty days after their agent was served with the state court pleading. As, there has been no opposition received from Travelers, with respect to plaintiffs Motion to Remand, this Court sees no reason why the time limit should not be applied.
III. Conclusion
The Court, having considered the record, the applicable law, and plaintiffs' unopposed Motion to Remand, is hereby ready to rule.
Accordingly,
IT IS ORDERED that the Motion to Remand submitted by plaintiffs Shadrisa Lee, et al, is hereby GRANTED and the case is hereby REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana, bearing Civil Action Number 2002-6751.