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Malave v. Sun Life Assurance Co. of Canada

United States District Court, D. Puerto Rico
Feb 18, 1975
392 F. Supp. 51 (D.P.R. 1975)

Summary

noting that Fed.R.Civ.P. 81(c) "implies that removal is not waived by defendant's . . . filing an answer in a state court prior to filing a petition for removal in the federal court"

Summary of this case from D.B., a Minor v. Sutton School District

Opinion

Civ. No. 74-1335.

February 18, 1975.

Rodolfo Sequeira, Hato Rey, P.R., for plaintiff.

O'Neill Borges, Eric A. Tulla, Hato Rey, P.R., for defendant.


ORDER


The issue before this Court is whether when a defendant in a state court files with that court, prior to removal to a federal court, a motion for an extension of time in which to plead submits to the jurisdiction of the state court and thereby waives his right of removal.

This is an action commenced in the San Juan Part of the Superior Court of the Commonwealth of Puerto Rico by plaintiff who filed a complaint on November 5, 1974. On November 11, 1974, defendant filed a motion for a 30 day extension of time. On December 4, 1974, defendant filed a timely petition to remove the proceedings to this Court pursuant to 28 U.S.C.A. § 1446. On December 18, 1974, plaintiff filed a motion to remand alleging that defendant, in filing its motion for enlargement of time in the Superior Court had submitted to that court's jurisdiction, and thereby waived its right of removal.

Rule 10.1 of Puerto Rico's Rules of Civil Procedure (32 LPRA APP. II Rule 10.1) requires a resident defendant to answer a complaint within ten days after service of complaint and summons.

The Court does not agree with plaintiff's contentions. If the Court would find for the plaintiff, future defendants in Puerto Rico's state courts would be faced with a Hobson's choice of either pleading within ten days after service of process or not to plead and risk default. The practical effect of such a result would be that Rule 10.1 of Puerto Rico's Rules of Civil Procedure requiring a ten days' answer would reduce to only ten days the 30 day period of removal provided for in the federal statute. It has been stated that the purpose of the time limitation prescribed by the removal statute is to make uniform the time for filing petitions for removal. (Dutton v. Moody, D.C., 104 F. Supp. 838; Sunbeam Corp. v. Brazin, D.C., 138 F. Supp. 723).

It has further been held that Rule 81(c), F.R.Civ.P., implies that removal is not waived by defendant's request for extension or other proceedings, or even filing an answer in a state court prior to filing a petition for removal in the federal court. (Champion Brick Co. of Baltimore County v. Signode Corp., 37 F.R.D. 2 (D.C.Md. 1965) and cases cited therein). A fortiori, if to answer a complaint in a state court is not a waiver of defendant's right of removal, seeking an extension of time in which to plead to prevent an entry of default, cannot constitute such waiver.

Wherefore, it is ordered that plaintiff's motion to remand is hereby denied

It is so ordered.


Summaries of

Malave v. Sun Life Assurance Co. of Canada

United States District Court, D. Puerto Rico
Feb 18, 1975
392 F. Supp. 51 (D.P.R. 1975)

noting that Fed.R.Civ.P. 81(c) "implies that removal is not waived by defendant's . . . filing an answer in a state court prior to filing a petition for removal in the federal court"

Summary of this case from D.B., a Minor v. Sutton School District

moving for extension of time in state court not waiver

Summary of this case from Bedell v. H.R.C. Ltd.
Case details for

Malave v. Sun Life Assurance Co. of Canada

Case Details

Full title:Belen Saez MALAVE, Plaintiff, v. SUN LIFE ASSURANCE COMPANY OF CANADA…

Court:United States District Court, D. Puerto Rico

Date published: Feb 18, 1975

Citations

392 F. Supp. 51 (D.P.R. 1975)

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