Opinion
CIVIL ACTION NO. 03-2646
November 10, 2003
This cause came for hearing on November 5, 2003, upon the motion of plaintiff, Henry Mitchell, Jr. ("Mitchell"), to remand the case to state court. Oral argument was not entertained by the Court; therefore, the matter was taken under submission on the briefs only. The Court, having studied the record, the legal memoranda submitted by the parties, as well as the applicable law and jurisprudence, is now fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
This matter arises out of a motor vehicle accident that occurred on April 3, 2003 on Interstate 10 in New Orleans, Louisiana. On August 23, 2003, the plaintiff filed suit and requested service on one defendant, Gerald Michael Lucas ("Lucas"), through the Louisiana Long-arm Statute (LSA-R.S. 13:3204), and on the other defendant, Great Northern Insurance Company ("Great Northern"), through the Secretary' of State.
On August 14, 2003, plaintiff mailed a copy of the petition by U.S. Mail to Lucas' home address and eleven days later, August 25, 2003, plaintiff attempted to formally serve Lucas by forwarding the state court citation and petition via certified mail, which was returned "unclaimed." Mr. Lucas was mailed a second copy of the petition on September 15, 2003
On August 22, 2003, plaintiff served Great Northern a copy of the citation and petition through the Louisiana Secretary' of State, its statutory agent for service of process, who, in turn, dispatched a notice of citation and service dated August 25, 2003. Great Northern received this process on August 29, 2003 through its Dallas, Texas office.
On September 22, 2003. within thirty days of plaintiff formally effectuating service of process on either defendant, the defendants removed this case to this Court pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction under 28 U.S.C. § 1332. In response, plaintiffs have filed the present Motion to Remand.
II. ARGUMENTS OF THE PLAINTIFF IN SUPPORT OF MOTION TO REMAND TO CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
Plaintiff argues that removal in this case is untimely and therefore barred because the defendant was mailed a copy of the petition to his proper address on August 14, 2003 and notice of removal was not filed until September 22, 2003.
Plaintiff submits that 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 summons upon the defendant if such initial pleading has been filed in court and is not required to be served on the defendant, whichever period is shorter. Plaintiff relies on Fifth Circuit jurisprudence to support his contention that for purposes of removal under section 1446(b), "[t]hirty days is measured from receipt of whatever writing . . . constitutes first notice." Further, the Fifth Circuit has held that the clear purpose of § 1446(b) is to commence the running of the thirty day period only when the defendant receives actual notice that the case has become removable, which may be communicated in a formal or informal manner.
Nguyen v. Allied Signal, Inc., 1998 WL 690854, N.D. Cal., 1998.
Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993).
Simmons v. Arellano. 1996 WL 194928 E.D. La., 1996 (quoting Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction 2d An. 3732).
Plaintiff submits that defendants notice of removal incorrectly states that the thirty days begins to run only when the defendant has been formally sewed. Therefore, because the defendant was advised of the pending action on August 14, 2003 and notice of removal was not filed until September 22, 2003, the notice is outside of the time afforded for filing this pleading and the case should be remanded to the Civil District Court for the Parish of Orleans for trial and determination as provided by law.
III. ARGUMENTS BY DEFENDANT IN OPPOSITION TO MOTION TO REMAND
Defendants argue that § 1446(b)'s thirty-day removal clock does not begin to tick until after formal service upon the defendant. Defendants submit that historically, there has been confusion and a split among the circuits as to when the time period beings to run. Under one interpretation, courts started the thirty-day time limit commences when the defendant is formally served with a summons (citation) and complaint (petition). Contrarily, other courts, including the Fifth Circuit, started the time limit when the defendant merely received a copy of the initial pleading through service or "otherwise," which includes the mere receipt of a courtesy copy of the petition. However, in 1999, the United States Supreme Court settled the dispute in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., in which it held that the thirty-day removal clock begins to tick only after the defendant is formally served with process. Defendants contend that it is undisputed that the Supreme Court's decision in Murphy Brothers overruled prior precedent from several federal circuits and it is now well-settled that § 1446(b)'s thirty-day removal clock does not begin to tick until the defendant is formally served with both the citation and petition. Accordingly, defendants contend that in the wake of Murphy Brothers, the date when plaintiff mailed Mr. Lucas a courtesy copy of the petition is immaterial for purposes of determining whether the defendants timely filed their Notice of Removal.
Bowman v. Weeks Marine, Inc., 936 F. Supp. 329, 333 (D.S.C. 1996). Baratt v. Phoenix Mut. Life Ins. Co., 787 F. Supp. 333, 336 (W.D.N.Y. 1992).
Resse v. Wal-Mart Stores, Inc., 98 F.3d 839, 841 (5th Cir. 1996).
Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
Defendant contends that case law cited by the plaintiffs pertain to fraudulent joinder and the timeliness of removing a case that is not initially removable based on the initial pleading. Jernigan and Simmons are irrelevant here, as plaintiff admits within his memorandum that the grounds for diversity jurisdiction in this case were evident from the fact of the initial pleadings. Defendants argue that the Supreme Court's decision in Murphy Brothers clearly governs this case.
Further, defendants argue that applying the appropriate time trigger espoused by the Supreme Court, it is undeniable that the action was timely removed. Both Gerald Lucas and Great Northern removed this case on September 22, 2003, which constitutes thirty days after the plaintiff formally served the Louisiana Secretary' of State as the statutory agent for Great Northern on August 22, 2003. Nonetheless, Great Northern actually received the citation and the petition from the Louisiana Secretary of State on August 29, 20003. Considering this date constitutes the correct time trigger for service upon Great Northern, defendants actually removed their case only twenty-four days after formal service, well before the 28 U.S.C. § 1446(b)'s thirty-day removal clock expired.
Hibernia Community Development Corp, Inc. v. U.S.E. Community Services Group, Inc., 166 F. Supp.2d 511 (E.D. La. 2001) (recognizing the general rule that the thirty-day removal clock begins to run not when the statutory agent such as the Louisiana Secretary of State is served, but when the defendant or someone serving the defendant's agent in fact receives the process).
Regarding Mr. Lucas, defendants contend that the plaintiff did not initiate the process to effect service upon him until August 25, 2003, only twenty-eight days before he removed this action. Further, they argue that if this Court were to consider the time he first received notice that the plaintiff was attempting to serve him under th Louisiana Long-Arm Statute, namely September 5, 2003, then his subsequent removal occurred only after seventeen days ticked off the removal clock.
In conclusion, defendants argue that this case was timely removed, as the time trigger for § 1446(b)'s thirty-day removal period in this case is August 29, 2003, the date when the plaintiff first served one of the defendants with process. Defendants filed their Notice of Removal on September 22, 2003, seven days before the removal time clock would have expired on September 29, 2003. For the foregoing reasons, defendants ask this Court to dismiss plaintiffs Motion for Remand and retain jurisdiction over this case pursuant to 28 U.S.C. § 1332.
IV. COURT'S LAW AND ANALYSIS
This case concerns the time period within which a defendant in state court may remove the action to a federal court. 28 U.S.C. § 1446(b), the governing provision, provides that the removal notice shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the complaint. In the instant case, the question presented is whether service of process must be formally effectuated upon the defendant before the time period begins to run, or whether the thirty-day period commences when the defendant receives actual notice that the case has become removable, communicated in a formal or informal manner.
The United States Supreme Court in Murphy Brothers v. Michetti Pipe Stringing, Inc. acknowledged that lower courts were previously divided on the question of whether service of process is a prerequisite for the running of the thirty-day removal period under § 1446(b). Acknowledging that service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant, the Supreme Court held:
Murphy Brothers at 349.
Id. at 350.
An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under the court's authority, by formal process. Accordingly, we hold 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.
Id. at 347-48 (Emphasis added).
On August 29, 2003, the plaintiff first served Great Northern Insurance Company through the Louisiana Secretary of State, its agent for service of process. As demonstrated by Murphy Brothers, this date triggers the time period for § 1446(b)'s thirty-day removal period. The Defendants filed their Notice of Removal on September 22, 2003, seven days before the removal clock would have expired on September 29, 2003. Therefore, this Court finds that removal to federal court in this case was timely and retains diversity jurisdiction over this action.
Accordingly,
It is IT IS ORDERED that the Motion to Remand to Civil District Court for the Parish of Orleans, filed on behalf of the Plaintiff, Henry Mitchell, Jr., is hereby DENIED.