Greising v. CP Chemical Co., Inc.

• Decision Date: 29 October 1986
• Docket Number: Civ. No. 4-86-643.
• Citation: 646 F. Supp. 553
• Parties: Robert M. and Mary Jane GREISING, individually and as parents and natural guardians of Mari Lee Greising, Plaintiffs, v. C.P. CHEMICAL COMPANY, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

646 F. Supp. 553

Robert M. and Mary Jane GREISING, individually and as parents and natural guardians of Mari Lee Greising, Plaintiffs, v. C.P. CHEMICAL COMPANY, INC., Defendant.

Civ. No. 4-86-643.

United States District Court, D. Minnesota, Fourth Division.

October 29, 1986.

Allan Shapiro, Minneapolis, Minn., for plaintiffs.

Jeffrey O. Knutsen, Minneapolis, Minn., and (Michael McManus, of counsel), Washington, D.C., for defendant.

MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on plaintiffs' motion to remand. Plaintiffs' motion will be denied.

FACTS

Plaintiff Robert and Mary Jane Greising and their daughter Mari Lee are residents of Waterville, Le Sueur County, Minnesota. Defendant C.P. Chemical Company, Inc. is a foreign corporation with its principal place of business in White Plains, New York. This is a products liability action arising from the installation of foam insulation in the Greising home in 1978. Plaintiffs allege that they suffered damages from toxic fumes released by the insulation. The action was originally filed in the Le Sueur County District Court, First Judicial District of Minnesota in 1982. Plaintiffs brought the state action against the defendant who manufactured the installation and against the installers of the insulation, Home Insulating Specialists, Inc. (HIS). HIS is a corporation organized and operating under the laws of Minnesota, and is located in Madison Lake, Minnesota. Since plaintiffs and HIS were both residents of Minnesota, there was no diversity and the action could not be removed to federal court. In late May, 1986, however, plaintiffs entered into a Pierringer release with HIS and a settlement was signed and finalized in early July, 1986. Plaintiffs' counsel signed the dismissal, prepared a proposed order of dismissal of HIS and submitted them to the Le Sueur County Court. The order was signed by the court on July 8, 1986 and filed by plaintiffs' counsel on July 9, 1986. On July 9, 1986 the clerk of the court of Le Sueur County sent out the dismissal and order of dismissal and the judgment of dismissal to all counsel of record, including both Minnesota and Washington, D.C. counsel for defendant C.P. Chemical. However, due to a clerical error, the judgment of dismissal incorrectly dismissed plaintiffs' entire action, instead of just dismissing defendant HIS. Plaintiffs' counsel received the documents on July 11, 1986 and notified the Le Sueur County court of the error. The judgment of dismissal was then amended the same day (July 11, 1986) and sent to all counsel of record. Counsel for plaintiffs and defendant C.P. Chemical's Minnesota and Washington, D.C. counsel all received the amended judgment of dismissal on July 14, 1986. Once HIS was dismissed from the case, diversity existed between plaintiffs and defendant. On August 13, 1986 the defendant C.P. Chemical served notice and verified petition for removal upon the Le Sueur County District Court.

Plaintiffs now move to remand to the state court. Plaintiffs allege that defendant's removal to federal court was untimely.

DISCUSSION

The procedure for removal of cases from state court is governed by 28 U.S.C. § 1446, which provides that:

(a) A defendant or defendants desiring to remove any civil action ... from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.

(b) .... 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.

Remand back to state court is governed by 28 U.S.C. § 1447, which provides that:

(c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.

(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise....

The time limitations of 28 U.S.C. § 1446 (the removal statute) are mandatory and are subject to strict construction. Percell's Inc. v. Central Tel. Co., 493 F.Supp. 156, 157 (D.Minn.1980); 14 C. Wright and A. Miller & Cooper, Federal Practice and Procedure § 3732 (1985). In the case at bar defendant's petition for removal was filed on August 13, 1986. In order for this petition to have been timely made, it must have been "filed within thirty days after the receipt by the...