Kerr v. Holland America-Line Westours, Inc.

• Decision Date: 15 May 1992
• Docket Number: No. 91-CV-75450-DT.,91-CV-75450-DT.
• Citation: 794 F. Supp. 207
• Parties: Joel P. KERR, Plaintiff, v. HOLLAND AMERICA-LINE WESTOURS, INC., Defendant.
• Court: U.S. District Court — Western District of Michigan

794 F. Supp. 207

Joel P. KERR, Plaintiff, v. HOLLAND AMERICA-LINE WESTOURS, INC., Defendant.

No. 91-CV-75450-DT.

United States District Court, E.D. Michigan, S.D.

May 15, 1992.

Raymond J. Sterling, Troy, Mich., for plaintiff.

Lynn E. Deitch, Detroit, Mich., for defendant.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND REMANDING THIS CASE TO WAYNE COUNTY CIRCUIT COURT

GERALD E. ROSEN, District Judge.

I. INTRODUCTION

This breach of employment contract/discriminatory discharge action is presently before the Court on Plaintiff Joel P. Kerr's Motion to Remand. Plaintiff argues that removal of this case to this Court was not timely within the thirty-day time limit of 28 U.S.C. § 1446(b), and hence contends that this action should be remanded to the Wayne County Circuit Court from which it was removed. Defendant maintains that the action was timely removed and has filed a Response in Opposition to the remand motion, to which Response Plaintiff has replied.

As indicated to counsel for the parties at the Scheduling Conference held in this case, the Court finds oral argument on the remand motion to be unnecessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), the Court will decide Plaintiff's Motion to Remand "on the briefs". This Opinion and Order sets forth the Court's ruling on this Motion.

II. FACTS

Plaintiff Joel Kerr ("Kerr") filed this state law wrongful discharge breach of employment contract/discrimination action against Defendant Holland America Line-Westours, Inc. ("Holland") in the Wayne County Circuit Court on July 24, 1991. On July 30, 1991, Kerr's counsel sent Holland's President and Chief Operating Officer, A.K. Lanterman, a letter by certified mail which stated in pertinent part:

Dear Mr. Lanterman:

Joel P. Kerr retained this firm to represent him in connection with his illegal firing. We have already filed a complaint against Holland America Line-Westours, Inc. based on age discrimination, sex discrimination, and wrongful discharge. We enclose a courtesy copy of the complaint for your review.

Plaintiff's Motion Ex. A.

The letter then went on to elaborate upon the factual allegations set forth in Plaintiff's Complaint and closed with the following:

In spite of the foregoing treatment, Mr. Kerr continues to feel a sense of dedication to the company—which he loyally served for almost a decade—and desires that this matter be resolved, if possible, without conflict, acrimony, or publicity, especially in light of the fact that he likely will continue various business relationships with your company. Accordingly, he has authorized us to make one attempt to resolve this matter prior to pursuing the enclosed lawsuit.

* * * * * *

We thus invite you and/or your attorneys or other representatives to meet with us to resolve this matter in a manner which satisfies both of our interests. Please contact me to arrange a mutually satisfactory date, time, and place to meet. However, if we have not heard from you or your attorneys within a reasonable time, we will proceed with serving and then pursuing the enclosed lawsuit.

Id.

As indicated in the above-quoted excerpts of the letter from Plaintiff's counsel to Mr. Lanterman, a "courtesy copy" of the Complaint which was filed in Wayne County Circuit Court on July 24th was sent to Mr. Lanterman along with the July 30th letter.¹ The signed certified mail receipt for the July 30th letter indicates that Lanterman received this letter on August 2, 1991. See Plaintiff's Motion Ex. A.

On August 30, 1991, Lanterman sent Plaintiff's attorney a three-page letter responding to his July 30th correspondence. In that August 30, 1991 letter, Mr. Lanterman stated that he had reviewed the July 30th letter and Plaintiff's complaint and had also reviewed Plaintiff's personnel file, and explained:

Holland America Line-Westours, Inc. is not a litigious company. We do not litigate for the sake of litigating. I also, however, will not settle cases which lack merit. In those situations, I am prepared to commit the Company's resources to defending Holland America.

Plaintiff's Reply Brief Ex. A.

Lanterman then went on and set forth Holland's reasons for believing that Plaintiff's complaint of wrongful discharge and discrimination was without merit. Lanterman concluded his August 30th response letter with the following:

In summary, there was no discrimination nor was there any wrongful discharge.... JUST SO THERE ARE NO MISCONCEPTIONS, PLEASE BE VERY CLEAR ON THE FACT THAT THIS LAWSUIT WILL NOT BE SETTLED NOW OR AT ANYTIME IN THE FUTURE.

Id. (Emphasis in original.)

On September 23, 1991, Holland America was formally served with both a Summons (which was issued by the Wayne County Circuit Court on July 24, 1991, the date on which Plaintiff's Complaint was filed) and the Complaint in this action. On October 21, 1991, Holland removed Plaintiff's case to this Court.

Kerr filed the instant Motion to Remand on November 20, 1991. Kerr argues that Holland's receipt of the courtesy copy of the Complaint on August 2, 1991, and not the subsequent formal service of the Summons and Complaint on September 23rd, triggered the commencement of the thirty-day period for removal under 28 U.S.C. § 1446(b). Because Defendant filed its Notice of Removal in this case on October 21, 1991 — i.e., 80 days after Holland's corporate president's receipt of the courtesy copy of the Complaint — Holland's removal was untimely.

Defendant counters that the 30-day period for removal is not commenced until a defendant has been formally served, and since it removed this case within thirty days of service on October 21, 1991, its removal was timely.

III. DISCUSSION

As a general principle, the removal statutes are to be construed narrowly. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). Further, "the party seeking removal bears the burden of establishing its right thereto." Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir.1989).

28 U.S.C. § 1446(b) sets forth the time requirements for removal of cases to federal district courts. It provides, in pertinent part:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

(Emphasis added.)

Section 1446's time requirement for timely filing a notice of removal "is not jurisdictional, but it is mandatory and must be strictly applied." Shadley v. Miller, 733 F.Supp. 54, 55 (E.D.Mich.1990); Pillin's Place, Inc. v. Bank One, Akron, N.A., 771 F.Supp. 205, 206 (N.D.Ohio 1991); Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 273 (7th Cir.1982). Untimeliness is a ground for remand so long as the timeliness defect has not been waived. Id.²

Plaintiff Kerr maintains that the plain language of the statute requires that the thirty-day period begin to run upon the defendant's receipt of a copy of the complaint, regardless of whether the defendant has been formally served. Hence Kerr argues that in this case Holland's removal was untimely as it came 80 days after its receipt of the Complaint. Holland disputes this interpretation of § 1446(b), arguing that the thirty-day period does not commence until the defendant has received a copy of the Complaint and been properly served. Thus Holland believes its removal was timely as it came 28 days after it was formally served.

The issue presented by Kerr's Motion to Remand is one which has divided federal district courts for over thirty years,³ and the positions taken by Holland and Kerr respectively reflect one of the two distinct lines of cases developed over the years.

Like Defendant Holland, several district courts — principally district courts in the Fifth and Eleventh circuits and in Puerto Rico, and some district courts in California—have followed the position articulated in Love v. State Farm Mutual Auto. Ins. Co., 542 F.Supp. 65 (N.D.Ga.1982), that only perfected service of process, not receipt of a courtesy copy of an unserved complaint, triggers § 1446(b)'s thirty-day removal period. See, Marion Corp. v. Lloyds Bank, PLC, 738 F.Supp. 1377 (S.D.Ala.1990); Bennett v. Allstate Ins. Co., 753 F.Supp. 299 (N.D.Cal.1990); Goodyear Tire and Rubber Co. v. Fuji Photo Film Co., 645 F.Supp. 37 (S.D.Fla.1986); Hunter v. American Express Travel Related Services, 643 F.Supp. 168 (S.D.Miss. 1986); Thomason v. Republic Ins. Co., 630 F.Supp. 331 (E.D.Cal.1986); Gibbs v. Paley, 354 F.Supp. 270 (D.P.R.1973). These cases hold that the thirty-day removal period is not commenced until the defendant has been properly served pursuant to state law and has received a copy of the complaint "through service or otherwise".

Courts which have adopted the "perfected process" rule have premised their determinations on the legislative history of the 1949 amendment of § 1446(b), which added the "service or otherwise" language to the statute.

The Love court explained the legislative history of the 1949 amendment as follows:

In 1948, in an attempt to make the removal procedure more uniform, Congress revised section 1446(b) to provide that the removal petition be filed in federal court "within twenty days after commencement of the action or service of process, whichever is later." 62 Stat. 939 (1948). Under this formulation, of course, the removal period could not begin until service of process had been obtained. A problem arose, however, in those states such as New York which permitted a plaintiff to commence a suit without serving or filing a complaint, merely by serving the

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