Christenson Media Group Inc. v. Lang Indus. Inc.

• Decision Date: 21 March 2011
• Docket Number: Case No. 10–2505–JTM.
• Citation: 782 F.Supp.2d 1213
• Parties: CHRISTENSON MEDIA GROUP, INC., Plaintiff,v.LANG INDUSTRIES, INC., and Enviroventures, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

782 F.Supp.2d 1213

CHRISTENSON MEDIA GROUP, INC., Plaintiff,
v.
LANG INDUSTRIES, INC., and Enviroventures, Inc., Defendants.

Case No. 10–2505–JTM.

United States District Court, D. Kansas.

March 21, 2011.

[782 F.Supp.2d 1214]

Keith J. Shuttleworth, Shuttleworth Law Firm LLC, Overland Park, KS, for Plaintiff.Camron L. Hoorfar, Attorney at Law, Lee's Summit, MO, for Defendants.MEMORANDUM AND ORDER J. THOMAS MARTEN, District Judge.

Presently before this court is plaintiff's Motion to Remand, or in the Alternative, for Default Judgment (Dkt. No. 3) and

[782 F.Supp.2d 1215]

Supplemental Motion to Remand to State Court (Dkt. No. 7). For the following reasons, the court denies the motions.I. Factual Background

On August 11, 2010, plaintiff sued defendants for breach of contract in the Johnson County, Kansas District Court. Plaintiff personally served defendants with summons and the Complaint on August 18, in Narrowsburg, New York. On September 17, 2010, defendants filed a Notice of Removal with this court (Dkt. No. 1). That notice contained the following provisions:

4. The United States District Court for the District of Kansas has subject matter jurisdiction pursuant to 28 U.S.C. § 1332, Diversity of Citizenship. Specifically, the case involves a Missouri corporation Plaintiff, two New York corporation Defendants, and an amount claimed as damages in excess of $300,000.00.

5. Copies of all process, pleadings and orders served upon the Defendants are filed with this notice as Exhibit “A”.

6. Defendant will provide Plaintiff with written notice of this filing as required by 28 U.S.C. § 1446(d).

7. A copy of this Notice will be filed with the Clerk of the District Court of Dickinson County, Kansas, as required by 28 U.S.C. 1446(d).

(Dkt. No. 1). On October 6, plaintiff filed a Motion to Remand to State Court, or in the Alternative, for Default Judgment. (Dkt. No. 3). Defendants have failed to respond to plaintiff's motion. However, on November 24, defendants filed an Amended Notice of Removal (Dkt. No. 6). The amended notice contained the following provisions pertinent to this motion:

5. Pursuant to 28 U.S.C. § 1332(c)(1), both Defendants are incorporated and are in active standing with the state of New York and both Defendants' principal place of business is located in Sullivan County, New York.

7. Copies of all process, pleadings and orders served upon Defendants are filed with this notice as Exhibit “B.”

9. A copy of this Notice will be filed with the Clerk of the District Court of Johnson County, Kansas, as required by 28 U.S.C. 1446(d).

Defendants failed to attach process to its Amended Notice. In response to defendants' Amended Notice, plaintiff filed its Supplemental Motion to Remand to State Court.

II. AnalysisA. Removal

A defendant may remove a civil action to federal court if the plaintiff originally could have filed suit in federal court. See 28 U.S.C. § 1441(a) (2006); see also Cunningham v. BHP Petroleum Great Britain PLC, 427 F.3d 1238, 1244–45 (10th Cir.2005). Under 28 U.S.C. § 1446(a) (2006), a defendant must:

[F]ile in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

Id. (emphasis added). A defendant must also “file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” Id. § 1446(d). The removal statutes are construed narrowly. Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1094–95 (10th Cir.2005). And, “there is a presumption against removal jurisdiction.”

[782 F.Supp.2d 1216]

Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.1995). Doubts about removal must be resolved in favor of remand. Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982).

Plaintiff argues that the court should remand this case back to state court because defendants (1) failed to attach service of process to its Notice of Removal and Amended Notice of Removal, (2) failed specifically to allege diversity jurisdiction, and (3) failed properly to file the Notice of Removal in state court. Plaintiff also argues in its Supplemental Motion to Remand that defendants' Amended Notice of Removal must be filed within the thirty-day period set forth in 28 U.S.C. § 1446(b), and because it was not, the court must order remand. Last, plaintiff seeks default judgment because defendants have not filed an answer in the time provided under Fed.R.Civ.P. 81. The main issue is whether defendants' procedural failures require this court to remand the case to state court or whether to allow defendants to cure these defects.

1. Failure to Attach Process

Under 28 U.S.C. § 1447(c) (2006), there are “two types of improperly removed cases: those in which the federal court has no subject matter jurisdiction and those with defects in the removal procedure itself.” Huffman v. Saul Holdings, Ltd. P'ship, 194 F.3d 1072, 1076 (10th Cir.1999). A defect in subject matter jurisdiction is never waived and can be raised at any time. Id. at 1076–77. A procedural defect does not involve subject matter jurisdiction and may be waived if a party fails to object within 30 days after removal. Id. at 1077.

There are two competing viewpoints on whether a failure to attach process to a notice of removal requires remand. Yellow Transp., Inc. v. Apex Digital, Inc., 406 F.Supp.2d 1213, 1215 (D.Kan.2005). “The predominant view is that the removing party's failure to file the required state court papers is ‘curable in the federal courts if there is a motion to remand.’ ” Id. (quoting 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3733 (3d ed. 1998)). The Fifth, Seventh, and Eleventh Circuits have generally followed this approach. See, e.g., Cook v. Randolph County, Ga., 573 F.3d 1143, 1150 (11th Cir.2009) (holding that “failure to include all state court pleadings and process with the notice of removal is procedurally incorrect but is not a jurisdictional defect”); Riehl v. Nat'l Mut. Ins. Co., 374 F.2d 739, 742 (7th Cir.1967) (holding that defendant's failure to attach a copy of the Complaint to its notice of removal did not deprive the district court of jurisdiction and stating that “[t]o permit this minor irregularity to defeat the District Court's jurisdiction would be to elevate form over substance”); Covington v. Indem. Ins. Co. of N. Am., 251 F.2d 930, 932–33 (5th Cir.1958) (holding that a defendant's failure to attach process to its notice of removal was not fatal and did not require remand).

Many district courts in several different circuits, including the District of Kansas, have also followed this approach. See, e.g., Berbig v. Sears Roebuck & Co., Inc., 568 F.Supp.2d 1033, 1039 n. 9 (D.Minn.2008) (stating that “a failure to comply with the requirements of [Section 1446(a) ] ordinarily is not grounds to deny removal”); Riggs v. Fling Irrigation, Inc., 535 F.Supp.2d 572, 579 (W.D.N.C.2008) (holding “[w]hile there may be some case law to support Plaintiff's argument, the majority approach is that the [failure to attach process] defect is merely procedural and that this particular procedural defect may be cured”); Yellow, 406 F.Supp.2d at 1215; In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 399 F.Supp.2d 340, 356 (S.D.N.Y.2005) (stating that procedural rules in 28 U.S.C. § 1446(a) are not jurisdictional

[782 F.Supp.2d 1217]

and the failure to file all state court papers with the notice of removal is curable in federal court); Kingman v. Sears, Roebuck & Co., 526 F.Supp. 1182, 1186 (D.Me.1981) (providing that court has discretion to give a defendant time to amend the notice of removal to attach process).¹

In Yellow, the District of Kansas confronted nearly the same lack-of-process issue presently before this court. The court held that “[s]o long as the defect in removal procedure does not involve a lack of federal subject matter jurisdiction, there is no reason why either State or Federal courts, or the parties, should be subject to the burdens of shuttling a case between two courts that each have subject matter jurisdiction.” Yellow, 406 F.Supp.2d at 1219. In reaching this conclusion, the court undertook an extensive analysis of the case law and legislative history surrounding the requirement that the defendant attach process to a notice of removal. Id. at 1215–19. First, the court noted that a majority of courts have held that “ ‘mere modal or procedural defects [in removal] are not jurisdictional’ and that under § 1446(b) missing state court papers may be supplied later.” Id. at 1215 (quoting Covington, 251 F.2d at 933). Because process may be supplied later, failure to attach it is a curable defect rather than a substantive error that requires remand. Id. at 1216. The court also recognized that a failure to attach process—although never addressed by the Tenth Circuit—was not the type of error that typically justifies remand. Id. at 1217; see Huffman, 194 F.3d at 1077–79 (defendant's failure to file notice of removal within the thirty-day period necessitated remand upon plaintiff's motion); see also Cornwall v. Robinson, 654 F.2d 685, 686–87 (10th Cir.1981) (finding that remand was appropriate when the notice was defective because a co-defendant had not joined the notice of removal). Last, the court found that the sole objective sought by Congress when it amended the removal statutes was to force the parties to raise objections promptly so procedural defects cannot later be used to prejudice the other party in court. Yellow, 406 F.Supp.2d at 1219. The defendant in Yellow, like the defendants here, failed to attach process to its notice of removal. Id. at 1214. In denying...