Opinion
Civil No. 00-1360-HA
December 5, 2000
Thomas H. Anderson McMinnville, OR Attorney for Plaintiff.
Edwin N. Storz Vancouver, WA Attorney for Defendants
OPINION AND ORDER
Pending before the court is plaintiff's motion to remand this case back to the Circuit Court of Yamhill County, Oregon, pursuant to 28 U.S.C. § 1447, on the ground that subject matter jurisdiction is lacking. Plaintiff filed his original complaint in that court on August 25, 2000. After service of the complaint, defendant's attorney, Edwin Storz, informed the plaintiff's attorney, Thomas Anderson, that he believed the federal RICO claim alleged in plaintiff's original complaint was defective as a matter of law. On October 4, 2000, Anderson, apparently agreeing that the RICO claim was deficient, told Storz he was going to draft an amended complaint dropping the RICO claim. The RICO claim was the sole federal claim in plaintiff's complaint, and the parties are not diverse.
On the afternoon of October 4th, Anderson had his assistant, Julie McManus, file the amended complaint with the Yamhill County Clerk's office. (Anderson Aff. at ¶ 2.) The person behind the counter said that she would take care of it. (Id. at ¶ 3.) McManus then asked a Yamhill County lawyer, Jerry Hart, who was also standing in line, whether she needed a receipt. (Id.) Hart replied that ordinarily a receipt was not needed for a complaint. (Id. at ¶ 4.) Therefore, McManus left without a receipt. The woman behind the counter, however, was not a regular clerk, and instead of stamping the amended complaint as received, she merely placed it on the desk of the regular file clerk, Donna Morehead, who was out of the office for the day. (Id. at 5.) When Morehead returned to work the following morning at 7:00 a.m., she found the amended complaint on her desk. She eventually stamped it as being received at 9:57 a.m. on October 5, 2000. (Morehead Aff. at ¶ 1.) In the meantime Storz had drafted a removal notice alleging federal jurisdiction based on the RICO claim in the original complaint. The removal notice was stamped as being received by the Clerk of the United States District Court for the District of Oregon at 9:42 a.m. on October the 5, 2000. (Defendants' Ex. 2.)
Hart has filed an affidavit confirming McManus's version of events.
The amended complaint was filed before the notice of removal, despite the earlier time stamped on the notice of removal. In Blackledge v. Harrington, 289 Or. 139 (1980), the Oregon Supreme Court explained,
The terms "`filing" and "entry" are often used interchangeably, not only in lawyers' parlance but also in statutes and the opinion of this court. They are, however, distinct acts with distinct legal significance. The difference is in the very nature of the acts: "filing" is an act done by another to the clerk, whereas "entry" is an act performed by the clerk. Filing occurs when a document is given to the clerk with the intention that it be filed. If a statute requires an act to be done within a number of days after an order is "filed," the time is measured from the date when the order is given to the clerk for filing, regardless of the date of entry.
Id. at 142-43. The Affidavits of McManus and Hart demonstrate that on October 4th, McManus handed the amended complaint to a person who was representing the Clerk of the Circuit Court of Yamhill County, Oregon. Therefore, the amended complaint was "filed" on October 4th, one day before the filing of defendants' notice of removal. Accordingly, by the time defendants' removal notice was filed, plaintiff's federal RICO claim had already been dismissed. Consequently, no basis for removal existed when defendants' filed the notice of removal to federal court. 28 U.S.C. § 1441(b).
Therefore, plaintiff's motion to remand, (doc. 6), is granted. This case is remanded to the Circuit Court of Yamhill, County Oregon. Plaintiff's corresponding request for attorney fees is denied.IT IS SO ORDERED.