Adams v. Western Steel Buildings, Inc., Civ. A. C-1161.

• Decision Date: 07 January 1969
• Docket Number: Civ. A. C-1161.
• Parties: Robert W. ADAMS, Donald D. Ryan, and Leonard J. Walker, Plaintiffs, v. WESTERN STEEL BUILDINGS, INC., a Colorado corporation; B & C Steel Corporation, a Nebraska corporation; and St. Paul Fire and Marine Insurance Company, a Minnesota corporation, Defendants and Third-Party Plaintiffs, v. Joseph F. HERRICK, Jr., Wallace Ashby, W. V. Hukill and Alfred D. Edgar; Nelson, Haley, Patterson and Quirk, Inc., and Penn Metal Company, Inc., Third-Party Defendants.
• Court: U.S. District Court — District of Colorado

296 F. Supp. 759

Robert W. ADAMS, Donald D. Ryan, and Leonard J. Walker, Plaintiffs, v. WESTERN STEEL BUILDINGS, INC., a Colorado corporation; B & C Steel Corporation, a Nebraska corporation; and St. Paul Fire and Marine Insurance Company, a Minnesota corporation, Defendants and Third-Party Plaintiffs, v. Joseph F. HERRICK, Jr., Wallace Ashby, W. V. Hukill and Alfred D. Edgar; Nelson, Haley, Patterson and Quirk, Inc., and Penn Metal Company, Inc., Third-Party Defendants.

Civ. A. C-1161.

United States District Court D. Colorado.

January 7, 1969.

Doyle T. Johns, Jr., Fort Morgan, Colo., Thomas E. McCarthy, R. W. Sullivan, Denver, Colo., for plaintiffs.

Yegge, Hall, Treece & Evans, by James L. Treece, Denver, Colo., for defendants and third-party plaintiffs.

Lawrence M. Henry, U. S. Atty., Robert E. Long, Asst. U. S. Atty., Denver, Colo., for third-party defendants Joseph F. Herrick, Jr., Wallace Ashby, W. V. Hukill and Alfred D. Edgar.

John J. Dooley, Greeley, Colo., for third-party defendant, Nelson, Haley, Patterson and Quirk, Inc.

Mike Hilgers, Denver, Colo., for third-party defendant Penn Metal Co., Inc.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

This matter is before the Court on the motion of the defendants and third party plaintiffs (hereinafter referred to simply as the third party plaintiffs) under 28 U.S.C. § 1447(c) to remand the action to the District Court for the County of Morgan. Third party defendants Joseph F. Herrick, Jr., Wallace Ashby, W. V. Hukill and Alfred D. Edgar sought removal under 28 U.S.C. § 1442(a) (1) relying on their uncontroverted status as federal agents being sued for acts done under color of their official positions. The propriety of removal is challenged on two grounds: 1) failure to petition for removal within the time specified in 28 U.S.C. § 1446(b), and 2) failure to present a separate and independent claim or cause of action under 28 U.S.C. § 1441(c), which, it is alleged, is necessary to allow removal by a third party defendant. Our disposition of the first of these contentions renders consideration of the latter unnecessary.

The factual context of the dispute is derived from the pleadings on file as well as from certain unchallenged statements of counsel in briefs filed in the case, though it should be noted that the third party defendants have neither filed a brief specifically in opposition to the present motion nor requested a hearing on the matter. By an amended complaint filed in the state court, plaintiffs sought to recover damages arising out of the collapse of a potato storage building from the present third party plaintiffs. On March 20, 1968 an amended third party complaint was filed seeking indemnity from numerous parties, including the United States and certain of its agents. The relevant allegations of that amended third party complaint read as follows:

2. That the Third Party Defendant, United States of America, negligently prepared and caused to be published United States Department of Agriculture Publication No. AMS-401 entitled "Pressures on Walls of Potato Storage Bins", which contained erroneous tables which were utilized by the Defendant, Western Steel Building, Inc., after being adopted by the other Third Party Defendants.

3. That the Third Party Defendant, United States of America, and the Third Party Defendants, Joseph F. Herrick, Jr., Wallace Ashby, W. V. Hukill, and Alfred D. Edgar, its agents, servants or employees, expressly and impliedly warranted the correctness of the said publication and breached said warranties.

Thereafter, the office of the United States Attorney, according to a brief in support of motions filed by that office, appearing for the above named individuals, filed motions to dismiss in the state court based on official immunity, statute of limitations and, as to one of the individuals, improper service. These motions were denied and on October 22, 1968 a second amended third party complaint was filed which also sought indemnity and read in pertinent part as follows:

2. That the Third Party Defendants, Joseph F. Herrick, Jr., Wallace Ashby, W. V. Hukill and Alfred D. Edgar, negligently prepared and caused to be published United States Department of Agriculture Publication No. AMS-401. * * *

3. That the Third Party Defendants, Joseph F. Herrick, Jr., Wallace Ashby, W. V. Hukill and Alfred D. Edgar, expressly and impliedly warranted the correctness of the said publication and breached said warranties.

On November 7, 1968 a petition for removal was filed in this Court based on the status of the third party defendants as federal agents being sued for acts done in the course and scope of their government employments.

As is apparent from the above stated facts, better than seven months elapsed from the filing of the first amended third party complaint to filing of the petition for removal, whereas less than thirty days passed between filing of the second amended third party complaint and the petition for removal.

It appears conceded, and properly so, that the procedural requirements of section 1446, specifically the thirty day time limitation of subsection (b), are applicable to actions removed under section 1442(a) (2) on federal officers as well as to those removed under the general statute. The dispute here is as to whether the filing of the second amended third party complaint has afforded the opportunity to remove by virtue of the second paragraph of section 1446(b), which reads as follows:

If the case stated by the initial pleading is not removable, a petition for 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 which is or has become removable.

The third party defendants contend that this provision is here applicable since the second amended third party complaint sets forth a new cause of action in negligence against them and that, therefore, the time for removal is to be measured by reference to that complaint rather than by reference to the initial amended third party complaint which first named these individuals as parties and sought indemnity from them for the allegedly erroneous statements in the publication.

While compliance with the removal time limit is not a jurisdictional prerequisite, the requirement is mandatory and may be insisted upon, absent waiver, by the party seeking remand. See, e. g., McLeod v. Cities Service Gas Co., 233 F.2d 242 (10th Cir.1956); Weeks v. Fidelity & Cas. Co., 218 F.2d 503 (5th Cir.1955); 1A J. Moore, Federal Practice 1345 (1965). In the instant case, we conclude that this requirement has not been met since the above quoted portion of section 1446(b) is not properly applicable. The provision by its terms is applicable only "if the case stated by the initial pleading is not removable * * *." The legislative history of the section states that

The second paragraph of the amendment to subsection (b) is intended to make clear that the right of removal may be exercised at a later stage of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed. This is declaratory of the existing rule laid down by the decisions. (See for example, Powers v. Chesapeake etc., Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673.) 2 U.S. Cong. & Admin.News, p. 1268 (1949). (emphasis added)

Thus, it is apparent that the applicability of...