Henlopen Hotel Corporation v. Aetna Insurance Company

• Decision Date: 07 January 1963
• Docket Number: Civ. A. No. 2503.
• Citation: 213 F. Supp. 320
• Parties: HENLOPEN HOTEL CORPORATION, a Delaware corporation, also known as Hotel Henlopen, Inc., Plaintiff, v. AETNA INSURANCE COMPANY, a Connecticut corporation, et al., Defendants.
• Court: U.S. District Court — District of Delaware

213 F. Supp. 320

HENLOPEN HOTEL CORPORATION, a Delaware corporation, also known as Hotel Henlopen, Inc., Plaintiff, v. AETNA INSURANCE COMPANY, a Connecticut corporation, et al., Defendants.

Civ. A. No. 2503.

United States District Court D. Delaware.

January 7, 1963.

Daniel L. Herrmann and John T. Gallagher, Herrmann, Bayard, Brill & Gallagher, Wilmington, Del., for plaintiff, Kertz & Donovan, Washington, D. C., of counsel.

William Prickett, Jr., Prickett, Prickett & Tybout, Wilmington, Del., for defendants.

LAYTON, District Judge.

The plaintiff filed suit against the defendants in the Superior Court of the State of Delaware in and for Sussex County, on August 22, 1962. The action was commenced by service of process upon the defendants by way of service upon the Insurance Commissioner of the State of Delaware on or about August 29, 1962. Thereafter, the action was removed to this Court by the defendants.

On September 14, 1962, the defendants filed in this Court their petition for removal, copies of the pleadings, process, etc., in the Delaware Court and a removal bond in the sum of five hundred dollars. On or about September 17, 1962, the defendants filed herein their notice of removal, affidavit, answer to the complaint, notice of depositions and interrogatories, all of which were served upon the plaintiff's attorneys. The petition for removal is not verified as the statute requires.¹

On September 25, 1962, the plaintiff moved to remand this action to the State court. The sole question before the Court is whether or not defendant's failure to verify the petition for removal constitutes a fatal defect.

It is unnecessary to cite authority for the proposition that statutes such as Sec. 1446(a) containing jurisdictional provisions must be strictly construed. This is conceded. But defendant takes the position that even this rule is subject to being relaxed in cases where the defect or omission is purely technical in nature. Kinney v. Columbia Savings and Loan Ass'n., 191 U.S. 78, 24 S.Ct. 30, 48 L.Ed. 103. The question is thus squarely presented as to whether the failure to verify the petition here was a substantial or a purely modal or formal irregularity.

Only a thin, wavering line marks the boundary between omissions which may be regarded as technical and those which are substantive. Compare S. B. McMaster, Inc., v. Chevrolet Motor Company, 4 Cir., 3 F.2d 469, with Herbert v. Roxana Petroleum Corporation, 7 Cir., 12 F.2d 81, where opposite conclusions were reached in cases having substantially similar facts.² Certainly this case presents a situation as to which reasonable minds might differ.

The plaintiff's counsel points out that no particular injustice can arise in this case if a remand is ordered for the result would be to remit the case back to the Superior Court of Delaware where a fair and impartial trial can be had before a number of able judges. And in a sense, this is true. But regardless of the rationale underlying Section 1446,³ the fact remains that this Section bestows upon a defendant wishing to remove to a federal court the unqualified right to do so without necessity of showing the impossibility of obtaining a fair trial in the State court providing he can meet the conditions imposed by the Statute. This, in my view, represents an important right of which a defendant should not be deprived because of the mere omission of a verification accompanying the petition. I regard as technical, an omission such as this which adds so little,⁴ and which can be so readily cured without conceivable prejudice to the plaintiff.

Cases from this same district such as Burns v. Standard Life Insurance Company of Indiana, D.C., 135 F.Supp. 904, and Gratz v. Murchison, D.C., 130 F. Supp. 709, may be distinguished. In the former, defendant removed his case after the lapse of the 20-day period provided by statute although a stipulation was entered into in the State court extending the time of the defendant "* * * to file its answer or to otherwise move or plead * * *." It was held that the statutory time provided for removal could not be altered by stipulation for, if it could, the very purpose underlying the provision permitting twenty days would be defeated.⁵

In the latter, the Gratz case, the petition failed to contain a jurisdiction allegation required by the statute, namely, a statement to the effect that a corporate defendant had not been served.

In my view, the omissions in the petitions for removal in the two cases above considered represented relatively serious defects,⁶ perhaps requiring the application of the rule of strict construction while the omission of a verification as here is of a lesser degree of seriousness, one which may fairly be characterized as technical in nature.

And so it was held by...