Patel v. Moore

• Decision Date: 11 June 1997
• Docket Number: No. 97-2125-JWL.,97-2125-JWL.
• Citation: 968 F.Supp. 587
• Parties: Hasmukh V. PATEL and Madhu N. Patel, Plaintiffs, v. Linda MOORE, Eric Moore, and Windsor Green Land Company, Defendants.
• Court: U.S. District Court — District of Kansas

Page 587

968 F.Supp. 587

Hasmukh V. PATEL and Madhu N. Patel, Plaintiffs, v. Linda MOORE, Eric Moore, and Windsor Green Land Company, Defendants.

No. 97-2125-JWL.

United States District Court, D. Kansas.

June 11, 1997.

Kurt D. Tilton, Brian L. Smith, Lance P. Stelling, Smith & Tilton, P.C., Kansas City, MO, for Hasmukh V. Patel, Madhu N. Patel.

Steven M. Leigh, Heather R. Merrigan, Martin, Leigh & Laws, P.C., Kansas City, MO, for Linda Moore, Eric Moore.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

In this action, plaintiffs seek dissolution of a partnership. The case was originally filed in state court and subsequently removed to this court. The matter is presently before the court on plaintiffs' motion to remand the case to state court (Doc. 10). Because of procedural deficiencies in the removal of the case, the court grants plaintiffs' motion, and the case is hereby remanded to Johnson County District Court. The court also awards plaintiffs' their costs, including attorney fees, associated with the removal and remand.

I. Background

On October 30, 1996, plaintiffs filed a petition in Johnson County District Court naming Linda Moore, Eric Moore, and Windsor Green Land Company (Windsor) as defendants. The petition alleged that plaintiffs and the individual defendants formed Windsor, a Kansas general partnership, in 1995. By the petition, plaintiffs sought to dissolve the partnership. After plaintiffs' unsuccessful attempts to serve defendants with process in California and service by publication beginning January 21, 1997, counsel entered an appearance for Linda and Eric Moore on February 18, 1997.

On March 7, 1997, Eric Moore filed a notice of removal in this court. The notice stated that this court had diversity jurisdiction because plaintiffs were residents of Kansas and the Moores were residents of California; according to the notice, Windsor's Kansas citizenship did not defeat diversity because its interests were not adverse to those of plaintiffs. The notice also stated that the amount in controversy exceeded $50,000 because the dispute involved property with an approximate value of over $4,000,000.

On April 4, 1997, plaintiffs filed the instant motion to remand. In the motion, plaintiffs argue that the case should be remanded because (1) Windsor's Kansas citizenship defeats diversity and violates the prohibition against removal by a resident defendant, 28 U.S.C. § 1441(b); (2) the amount in controversy does not meet the statutory minimum for diversity jurisdiction; (3) the notice of removal was untimely; (4) all defendants did not consent to removal within the statutory period; and (5) defendants failed to file a copy of all state court proceedings within twenty days of removal as required by local rule.

On April 8, 1997, defendant Linda Moore filed a consent to removal of the case. Also on April 8, Linda and Eric Moore filed copies of the state court proceedings.

II. Procedural Deficiencies

Because federal courts are courts of limited jurisdiction, there is a presumption against federal jurisdiction, and the party invoking such jurisdiction bears the burden of proof. Penteco Corp. Ltd. Partnership — 1985A v. Union Gas Sys., 929 F.2d 1519, 1521 (10th Cir.1991); Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). "Removal statutes are to be strictly construed, and all doubts are to be resolved against removal." Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982) (citation omitted).

A. Timeliness of Removal

Plaintiffs assert that the notice of removal, filed March 7, 1997, was untimely. The procedure for removal is governed by 28 U.S.C. § 1446, which states in 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....

28 U.S.C. § 1446(b).

Plaintiffs have provided a copy of a letter from Eric Moore to a bank president that refers to the petition filed by plaintiffs in October of 1996 and gives the case number assigned to the petition; the letter is dated November 21, 1996, more than thirty days before Mr. Moore's notice of removal. This argument is countered by affidavits by Linda and Eric Moore. According to the affidavits, Linda Moore, Eric's mother, wrote the November 21 letter; she signed Eric Moore's name to the letter because they "had determined that Eric alone should communicate with [the bank] due to his background in and knowledge of banking." The affidavits state that, although Linda Moore received a copy of the petition in "late 1996", Eric Moore never received or viewed a copy of the petition before February 18, 1997, when counsel entered an appearance on behalf of the Moores. The Moores thus argue that the thirty-day deadline did not begin to run until February 18.

Even if the court accepts these statements as true, it nonetheless concludes that the notice of removal filed in this case was not timely. First, it is immaterial that the Moores were not served with process. In Wickham v. Omark Industries, Inc., 1993 WL 393012 (D.Kan. Sept.28, 1993), this court adopted the "receipt rule" and held that the thirty-day removal period runs from the time the defendant receives a copy of the state court petition. Id. at *3. Such interpretation gives effect to the plain language of the statute, which provides that the removal clock runs from the receipt of a copy of the initial pleading "through service or otherwise." Id. at *2-3 (quoting 28 U.S.C. § 1446(b)) (emphasis added). Moreover, the receipt rule is in harmony with the strict construction of removal statutes and the resolution of any doubt in favor of remand. Id. at *3; see also Roe v. O'Donohue, 38 F.3d 298, 304 (7th Cir.1994) (Easterbrook, J.) (adopting receipt rule); Rothwell v. Durbin, 872 F.Supp. 880, 881 (D.Kan.1994) (same).

Eric Moore insists that he did not receive a copy of the petition before February 18, 1997. Linda Moore admits that she received a copy in late 1996, however, and that admission is fatal.

When there is more than one defendant, all defendants must join in the removal. Sheet Metal Workers Int'l Ass'n, AFL-CIO v. Seay, 693 F.2d 1000, 1005 n. 8 (10th Cir. 1982); Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981). The majority rule is that the thirty-day period for removal begins for all defendants upon receipt of the petition by the first defendant. Henderson v. Holmes, 920 F.Supp. 1184, 1187 n. 3 (D.Kan. 1996); Martin Pet Prods. v. Lawrence, 814 F.Supp. 56, 57 (D.Kan.1993); 16 James W. Moore, Federal Practice § 107.30[3][a][iv][C] (3d ed.1997); see, e.g., McKinney v. Board of Trustees of Md. Community Coll., 955 F.2d 924, 926 n. 3 (4th Cir.1992); Getty Oil Corp. v. Insurance Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir.1988); Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th Cir.1986). Courts in this district have consistently followed the majority rule. See Henderson, 920 F.Supp. at 1187 n. 3; Wickham, 1993 WL 393012, at *3; Martin Pet Prods., 814 F.Supp. at 57; Dick v. John Deere Ins. Co., 1992 WL 190622, at *2 (D.Kan. July 14, 1992); Cohen v. Hoard, 696 F.Supp. 564, 566 (D.Kan.1988). In Martin Pet Products, the court explained its reasoning as follows:

The cases which adhere to this majority rule generally do so on the basis of the "rule of unanimity," which simply refers to the requirement that all defendants must agree to the removal. The assumption is that, if the first defendant was in favor of removal, he would have removed the case. Since he did not, the other defendants are prohibited from removing the case, if 30 days from the time of service on the first defendant has run. Although the defendant urges this court to adopt the reasoning of Garside [by Garside v. Osco Drug, Inc., 702 F.Supp. 19 (D.Mass.1988)], this court believes the majority view is sound. This view comports with the general principle of strictly construing the removal statutes and resolving any doubt in favor of remand.

Further it satisfies the rule of unanimity. 814 F.Supp. at 57 (citations omitted).

The Moores argue that the majority rule is unfair to later-served defendants who are deprived of an opportunity to persuade other defendants to consent to removal, and who may be subject to a manipulative plaintiff's first serving the defendant least likely to remove. See 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3732 (2d ed.1985). The court dismissed such an argument in Cohen: "The argued unfairness of denying the opportunity to remove to a subsequently served defendant is simply the operation of the unanimity requirement." 696 F.Supp. at 566; see also Brown, 792 F.2d at 482 (dispelling criticism in Wright & Miller; second defendant's position is not any worse than if the first defendant refused to consent); 16 Moore, supra, § 107.30[3][a][iv][C] (less strict minority approach is inconsistent with the general rule construing statutes against removal; majority rule follows from unanimity requirement).

The court concludes that the majority rule is sound and that there is no reason to apply a different rule in this case. The Moores' concerns about unfairness are especially unfounded in this case. Plaintiffs did not manipulate the rule by deliberately serving one defendant first; in fact, neither defendant was served with process. The close relation of the two defendants in question also supports application of the majority rule in this case. Accordingly, the thirty-day period for removal was triggered in 1996, when Linda Moore received a copy of the petition, and the February 18 notice of removal was untimely. Plaintiffs are therefore entitled to an order remanding the case.

B. Consent of All Defendants

Even if the thirty-day period ran from February 18 and the notice of removal was timely filed, remand would...