Flying Cross Check v. Central Hockey League

• Decision Date: 08 March 2001
• Docket Number: No. 01-4026-SAC.,01-4026-SAC.
• Citation: Flying Cross Check v. Central Hockey League, 153 F.Supp.2d 1253 (D. Kan. 2001)
• Parties: FLYING CROSS CHECK, L.L.C. d/b/a Topeka Scarecrows, Plaintiff, v. CENTRAL HOCKEY LEAGUE, INC. d/b/a Central Hockey League, Defendant.
• Court: U.S. District Court — District of Kansas

153 F.Supp.2d 1253

FLYING CROSS CHECK, L.L.C. d/b/a Topeka Scarecrows, Plaintiff, v. CENTRAL HOCKEY LEAGUE, INC. d/b/a Central Hockey League, Defendant.

No. 01-4026-SAC.

United States District Court, D. Kansas.

March 8, 2001.

Order Modifying Opinion March 12, 2001.

COPYRIGHT MATERIAL OMITTED

Randall J. Forbes, Kevin M. Fowler, John C. Frieden, Clinton E. Patty, Frieden, Haynes & Frobes, Topeka, KS,

Anne L. Baker, Thomas E. Wright, Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, Topeka, KS, David N. Holstead, Topeka, KS, for defendant.

Jonathan C. Brzon, Tillotson, Nelson, Wiley & Brzon, Leavensworth, KS, Richard V. Eckert, Office of Shawnee County Counselor, Topeka, KS, for movant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This removal action comes before the court on the defendant Central Hockey League, Inc.'s motion to set aside the temporary restraining order ("TRO") issued by the District Court of Shawnee County, Kansas, prior to removal (Dk.4); the motion to intervene (Dk.13) filed by the Board of County Commissioners of the County of Shawnee County, Kansas; and the plaintiff Flying Cross Check, L.L.C.'s amended motion to extend the TRO (Dk.15). On the defendant's request for a hearing, the court heard the motion to set aside on March 6, 2001. At that time, the parties' presented arguments and evidence concerning the duration, dissolution and extension of the TRO. The court took the matter under advisement and is now ready to rule.

PROCEDURAL BACKGROUND

On February 21, 2001, the plaintiff Flying Cross Check. L.L.C. ("FCC") filed suit by verified complaint in the District Court of Shawnee County, Kansas, against the defendant Central Hockey League, Inc. ("CHL"). On the same day, the plaintiff FCC applied for and received an ex parte temporary restraining order that enjoined the defendant from:

(a) taking any direct or indirect action to terminate the Sanction Agreement between the parties or otherwise acting in any way to prevent Plaintiff from operating its hockey operations for the remainder of the 2000-2001 hockey season, including the playoffs; (b) implementing, maintaining or otherwise enforcing any actions based on the termination of the Sanction Agreement (including realigning the Central Hockey League games schedule in place prior to February 20, 2001); and/or (c) preventing any Central Hockey League member club from appearing and/or playing the games as scheduled prior to February 20, 2001, based on such termination forthwith at any time prior to final hearing and disposition of Plaintiff's application for temporary injunction, including any appellate proceedings, or except as otherwise ordered by this Court for good cause shown.

On February 26, 2001, the defendant CHL filed its notice of removal in this court asserting diversity jurisdiction. (Dk.1). The petition alleges that the plaintiff FCC is a limited liability company organized and existing under Kansas law and that the defendant CHL is a corporation organized and existing under Oklahoma law with its principal place of business in Indianapolis, Indiana. The removal petition asserts the amount in controversy exceeds $75,000 in that the plaintiff FCC seeks as relief to be excused from its contractual obligation (subsection (d) of the Sanction Agreement) to make monthly payments of $10,000 which would have the pecuniary effect of denying the defendant CHL of $80,000.

Also on February 26, 2001, the defendant CHL filed a motion to set aside the temporary restraining order (Dk.4) and filed its memorandum in support of this motion late Friday afternoon on March 2, 2001. (Dk.9). The plaintiff FCC filed its response opposing this motion on March 5, 2001, (Dk.12), and later that day filed an amended motion to extend the TRO (Dk.15).

DURATION OF STATE COURT TRO FOLLOWING REMOVAL

"[A]fter removal, such state court orders remain in effect but `federal rather than state law governs the future course of proceedings.'" Palmisano v. Allina Health Systems, Inc., 190 F.3d 881, 885 (8th Cir.1999) (quoting Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 437, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974)). In other words, "after removal, the federal court merely takes up where the state court left off." Alpert v. Resolution Trust Corp., 142 F.R.D. 486, 487 (D.Colo.1992). The court "must apply the Federal Rules of Civil Procedure and treat the case as though it were originally commenced here." Bruley v. Lincoln Property Co., Inc., 140 F.R.D. 452, 453 (D.Colo.1991). Consequently "[a]n ex parte temporary restraining order issued by a state court prior to removal remains in force after removal no longer than it would have remained in effect under state law, but in no event does the order remain in force longer than the time limitations imposed by Rule 65(b), measured from the date of removal." Granny Goose Foods, 415 U.S. at 439-40, 94 S.Ct. 1113; Rothner v. City of Chicago, 879 F.2d 1402, 1418 (7th Cir. 1989); Carrabus v. Schneider, 111 F.Supp.2d 204, 210-11 (E.D.N.Y.2000). The Supreme Court clarified its holding in a footnote with illustrations, including this one:

Where, however, a state court issues a temporary restraining order of 15 days' duration on Day 1 and the case is removed to the federal court on Day 2, the restraining order will expire on Day 12, applying the 10-day time limitation of Rule 65(b) measured from the date of removal. Of course, in either case, the District Court could extend the restraining order for up to an additional 10 days, for good cause shown, under Rule 65(b).

Granny Goose Foods, 415 U.S. at 440 n. 15, 94 S.Ct. 1113.

Date of Removal

The procedure for removal is laid out in 28 U.S.C. § 1446, which states in part:

(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with 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.

"The only rule that logically follows from 28 U.S.C. § 1446(d) is that removal is effected when the notice of removal is filed with the state court and at no other time." Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir.1996); Traynor v. O'Neil, 94 F.Supp.2d 1016, 1023 (W.D.Wis.2000) ("many jurisdictions ... regard the filing of the notice with the state court as a necessary step to effect removal.") (citing 14C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3737 (3d ed. 1998) ("Accordingly, the sounder rule, and the one most consistent with the language of Section 1446(d) of Title 28, is that removal is not effective until all the steps required by the federal statute have been taken by the defendant.")); see also Zeglis v. Sutton, 980 F.Supp. 958, 961 (N.D.Ill.1997) ("Removal is effective when notice of removal is filed in state court."). The court agrees that the most logical reading of § 1446(d) is that removal is effective upon filing the notice in state court and that in most instances, this filing date will be the date of removal.

There is some dispute here over when the notice of removal should be considered as having been filed in state court. The defendant filed a notice of removal in federal district court on February 26, 2001. Its certificate of service shows that a copy of this notice was hand delivered on February 26, 2001, to FCC's counsel and to the Clerk of the District Court of Shawnee County, Kansas. Notwithstanding this certificate of service, the plaintiff submits a certified of copy of the notice of removal that was filed in state court. It bears a filing stamp date of February 28, 2001. There was no evidence or arguments offered to dispute that the state district court clerk received the notice on February 26, 2001, as provided in the certificate of service.

Section 1446(d) requires the defendant to "file a copy of the notice with the clerk of such State court." Rule 5(e) of the Federal Rules of Civil Procedure provides that "[t]he filing of papers with the court as required by these rules shall be made by filing them with the clerk of court." Filing under Rule 5(e) occurs with the delivery of the papers into the actual possession or custody of the clerk. See In re Toler, 999 F.2d 140, 142 (6th Cir.1993) ("filing of complaint ... is accomplished when the complaint is delivered to the clerk of the appropriate court"); Hernandez v. Aldridge, 902 F.2d 386, 388 (5th Cir.1990) (treats a complaint as filed when placed in the custody of the clerk), cert. denied, 498 U.S. 1086, 111 S.Ct. 962, 112 L.Ed.2d 1049 (1991); Central States, Southeast & Southwest Areas Pension Fund v. Paramount Liquor Co., 34 F.Supp.2d 1092, 1094 (N.D.Ill.1999) (filing is complete upon delivery and receipt to the clerk's office); United States v. Johnson, 992 F.Supp. 1257, 1263-64 (D.Kan. 1998) (documents are filed upon delivery to the clerk's custody); cf Jarrett v. U.S. Sprint Communications Co., 22 F.3d 256, 258-59 (10th Cir.) ("constructive filing" concept used for complaint submitted with an in forma pauperis application), cert. denied, 513 U.S. 951, 115 S.Ct. 368, 130 L.Ed.2d 320 (1994). The hand delivery of the notice of removal to the custody and possession of the Clerk of the District Court of Shawnee County, Kansas, constitutes filing for purposes of § 1446(d), D.Kan. Rule 81 .1(c); and Fed.R.Civ.P. 5(e). Consequently, the date of removal is February 26, 2001, and the ten-day period provided in Fed.R.Civ.P. 65(b) commences on that date.

Calendar v. Business Days

Rule 6(a) of the Federal Rules of Civil Procedure provides that "[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Courts apply this rule in computing the ten-day period under Rule 65(b). See, e.g., Dan River, Inc. v. Sanders Sale Enterprises,...