Opinion
Civil Action No. 1:98cv4-D-D
February 11, 1998
MEMORANDUM OPINION
Presently before the court is the motion of the plaintiffs to remand this cause to the Circuit Court of Alcorn County, Mississippi. Finding that the motion is well taken, the court shall grant the motion and return this matter to state court for ultimate resolution.
In this case, the plaintiffs seek remand based upon a defect in the removal procedure, i.e., the defendants' failure to file its 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 action or proceeding is based . . ." 28 U.S.C. § 1446(b) (emphasis added). It appears undisputed that at least as early as November 24, 1997, the defendants received a copy of the complaint of this cause which had already been filed with the state court clerk on November 17, 1997. In a letter dated November 19, 1997, counsel for the plaintiffs communicated to defense counsel:
In response to your letter to William N. Reed and at the request of Sheryl Bey, I am enclosing Waivers of Process for your client's signature along with copies of the complaint filed in Alcorn County.
Exhibit "1" to Plaintiffs' Motion, Letter Dated 11/19/97 from Margaret McMurtray to Phil Hinton. Defense counsel received this letter at least by November 24, 1997, for that is when he sent a response requesting a different form for the waivers of process. Exhibit "1" to Plaintiffs' Motion, Letter Dated 11/19/97 from Phil Hinton to Margaret McMurtray. As plaintiffs' counsel correctly notes, the Fifth Circuit has determined that the "or otherwise" statutory phrase contained in 28 U.S.C. § 1446(b) includes receipt by a defendant of a "courtesy copy" of the complaint in a case that has already been filed. Reece v. Wal-Mart Stores, 98 F.3d 839, (5th Cir. 1996) ("[T]he statute expresses a policy preference that removal occur as soon as possible, i.e., within thirty days after the defendant receives a pleading or other paper confirming that a removable case has been filed against it."); see also McKnight v. Illinois Cent. R.R., 967 F. Supp. 182, 185 (E.D. La. 1997) ("According to the statute, the thirty-day period begins when the defendant receives a copy of the initial pleading through any means, not just service of process.") (quoting Reese, 98 F.3d at 841). As the defendants knew at least as early as November 24, 1997 that a removable case had been filed against them, they should have filed their notice of removal no later than December 24, 1997. Instead, they did not file a notice of removal until January 6, 1998. The defendants essentially make two points in response to the plaintiff's motion. Both of their arguments , however, rely upon the fact that the complaint received had not been filed in the case at bar at the time they received a courtesy copy of it by an earlier correspondence with plaintiff's counsel dated November 14, 1997. See Schneehagen v. Spangle, 975 F. Supp. 973, 977 (S.D. Tex. 1997) (determining that receipt of advance copy of complaint not yet filed in state court did not trigger running of 30-day removal period).
The defendants also argue that utilizing a literal application of § 1446(b) would require them to waive objections to service of process, jurisdiction and venue. The Fifth Circuit has already addressed this contention in Reese: Even if we assume, arguendo, that a defendant might waive state service-of-process requirements or other protections by removing, the plain language of § 1446(b) does not thereby produce an absurd result; instead, it reflects a legislative policy judgment that the receipt rule's benefits outweigh its detriments. Reese. 98 F.3d at 842 (emphasis in original).
In the present case, the Complaint had not been filed at the time the defendants received a courtesy copy [with the November 14 letter]. Furthermore, plaintiff's counsel made no attempt to provide defense counsel unequivocal notice that the Complaint had been filed. Rather, . . . they merely provided an unexecuted courtesy copy.
Defendants' Response Brief, p. 3. Regardless of this earlier correspondence and receipt of an unexecuted, unfiled complaint, it appears without dispute that the defendants received with the November 19 letter a copy of the executed complaint that had been filed in state court on November 17. Ms. McMurtray's November 19 letter leaves no doubt that the complaint had already been filed in state court. In light of this court's assumption in the defendants' favor that they did not obtain a copy of the filed complaint until November 24, the date of Mr. Hinton's response to the November 19 letter, the notice of removal was nevertheless filed approximately two weeks late. While this court most certainly possesses the equitable power to consider "exceptional circumstances on a case-by-case basis," the undersigned fails to see any equitable justification for this two week delay in filing a notice of removal. Reese, 98 F.3d at 842. Therefore, this court finds that the defendants' notice of removal was filed outside of the required time frame set forth by 28 U.S.C. § 1446(b). As such, the plaintiffs' motion to remand shall be granted, and this cause shall be remanded to the Circuit Court of Alcorn County, Mississippi.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING MOTION TO REMAND
Pursuant to a memorandum opinion issued this day, it is hereby ORDERED THAT:
) the plaintiffs' motion to remand is hereby GRANTED;
) this cause is hereby REMANDED to the Circuit Court of Alcorn County, Mississippi.
SO ORDERED.