Potter v. McCauley
| Decision Date | 04 August 1960 |
| Docket Number | Civ. A. No. 12255. |
| Citation | 186 F. Supp. 146 |
| Parties | Lloyd A. POTTER v. Helen L. McCAULEY. |
| Court | U.S. District Court — District of Maryland |
James R. Miller, Sr., G. Richard Park, Rockville, Md., for plaintiff.
Albert G. Aaron, Baltimore, Md., Mark P. Friedlander, Friedlander & Friedlander, Washington, D. C., for defendant.
The plaintiff's motion to remand this case to the state court, on the ground that the petition to remove it from a state court to this court was not timely, requires a determination of the proper meaning and application of the word "otherwise" in 28 U.S.C.A. § 1446, subsection (b), as amended in 1949, which provides in relevant part here as follows:
"(b) The petition for removal of a civil action or proceeding shall be filed within twenty 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 twenty 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 supplied.)
The question is presented under somewhat unusual conditions. On March 15, 1960 the plaintiff filed a suit in the Circuit Court for Montgomery County, Maryland, seeking specific performance by the defendant of an alleged contract dated September 21, 1959 for the sale of certain real estate situated in Montgomery County. The plaintiff is a citizen of Maryland and the defendant, the owner of the property, is a resident of the District of Columbia. It was not legally possible to serve process personally from Maryland on the defendant and no attempt was made by the plaintiff to do so. However, the plaintiff was represented by counsel in Montgomery County and the defendant by counsel in Washington, D. C. Even prior to the filing of the suit there were conferences between respective counsel regarding a possible agreement but they came to nought, and the suit was filed. At the time of doing so plaintiff's counsel wrote a letter, dated March 15, 1960, to defendant's counsel enclosing a copy of the bill of complaint in equity which had been filed with the suit in Montgomery County, and in the letter accompanying the complaint, inquired whether the defendant would accept service or would the plaintiff be required to "advertise". It is inferable that plaintiff's counsel was here referring to the possibility that substituted service by the plaintiff could be made on the defendant by publication under the Maryland Code of 1957, Art. 16, § 128, (see also Md. Rules of Procedure, Rules 178, 111, 105), but it is unnecessary to decide or even imply whether this or possibly some other section of the Maryland statutes would be applicable to this case as the plaintiff made no effort to advertise or publish notice of the suit.
It appears that subsequent to the mailing by plaintiff's counsel of a copy of the complaint, there were further conferences between opposing counsel but there was no acceptance by defendant's counsel of service, and no service or attempt thereof was ever made.
On June 16, 1960, more than twenty days after receipt by defendant's counsel of a copy of the complaint above mentioned, defendant filed an order of appearance in this court and petition for removal of the case from Montgomery County to this court, saying in her petition that "she desired to enter her general appearance in this court" and to remove the case hereto. On June 30, 1960 the plaintiff filed a motion to remand the case on the ground that it was not timely filed because more than twenty days after receipt by defendant's counsel of a copy of the complaint. This is opposed by the defendant on the ground that the twenty days did not begin upon the receipt of the copy of the complaint.
Plaintiff's contention is that as defendant's counsel received a copy of the complaint otherwise than through service, the twenty days began to run from the receipt of the complaint by mail, even though there had been no personal service before the receipt of the complaint. This is a purely literal application of the word "otherwise" which, I think, is unsound from the whole content of the historical development of the amended statute.
Stemming from the Federal Act of 1875 (18 Stat. 470) authorizing the removal of a civil suit of this nature from a state to a federal court, the statutory provision as it existed with prior amendments thereto before the revision of the Judicial Code of 1948, provided in the removal of a civil suit from a state court to a federal court, the defendant was required to file in the state court a petition to the Judge of that court for an order for the removal before the expiration of the time for pleading as provided in the state procedure. This, of course, necessarily implied that service on the defendant had to be made before he was required to plead. It will also be remembered that in the Federal Judicial Code prior to 1948 there were other and different modal provisions for the removal of various classes of suits with respect to whether they were civil or criminal. To remove a criminal case the petition was required to be addressed to a federal judge and not to a state judge, and the time for application was, as I recall, any time before the trial of the case in the state court. In the revision of the Judicial Code it was thought desirable to make the modal provision with respect to where the petition for removal should be filed and, so far as possible, the time within which it was filed, "uniform"; and with respect to the removal of a civil case the provision in 28 U.S.C.A. § 1446 provided as follows: "(b) The petition for removal of a civil action or proceeding may be filed within twenty days after commencement of the action or service of process, whichever is later." 62 Stat. 939. It will be noted that as so worded the requirement with respect to the computation of the twenty days allowed included at least personal service but did not require service of a copy of the complaint. The omission of the latter was thought to be unreasonable because the defendant could not fairly be required...
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Sindical v. Pepsiamericas, Inc.
...or otherwise" stated at 1446(b) means summons except via a waiver of service adopting the solution of the case of Potter v. McCauley, 186 F.Supp. 146, 149 (D.C.Md.1960). "The interpretation of § 1446(b) adopted here adheres to tradition, makes sense of the phrase "or otherwise," and assures......
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Sindical v. Pepsiamericas, Inc.
...or otherwise" stated at 1446(b) means summons except via a waiver of service adopting the solution of the case of Potter v. McCauley, 186 F.Supp. 146, 149 (D.C.Md.1960). "The interpretation of § 1446(b) adopted here adheres to tradition, makes sense of the phrase "or otherwise," and assures......
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Kerr v. Holland America-Line Westours, Inc.
...adhered to the "perfected process" rule, in more recent cases have adopted the "receipt rule" approach. Compare, e.g., Potter v. McCauley, 186 F.Supp. 146 (D.Md. 1960) and Moore v. Firedoor Corp., 250 F.Supp. 683 (D.Md.1966) with Schwartz Bros. v. Striped Horse Records, 745 F.Supp. 338 (D.M......
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Whitaker v. American Telecasting Inc.
...receipt of the complaint." Murphy Brothers, 526 U.S. at 354, 119 S. Ct. at 1328-29 (emphasis added) (citing Potter v. McCauley, 186 F.Supp. 146, 149 (D. Md. 1960)). The court below used this language to buttress its conclusion that, after Murphy Brothers, the only kind of initial pleading t......