Rashid v. Schenck Const. Co., Inc.

• Decision Date: 10 December 1993
• Docket Number: Civ. A. No. 2:93-0354.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Leroy M. RASHID and Richard C. Rashid, West Virginia Residents, Plaintiffs, v. SCHENCK CONSTRUCTION COMPANY, INC., and Schenck & Associates, Inc., Kentucky Corporations, Defendants, and United States Fidelity & Guaranty Company, Intervenor Suggestee.

843 F. Supp. 1081

Leroy M. RASHID and Richard C. Rashid, West Virginia Residents, Plaintiffs, v. SCHENCK CONSTRUCTION COMPANY, INC., and Schenck & Associates, Inc., Kentucky Corporations, Defendants and United States Fidelity & Guaranty Company, Intervenor Suggestee.

Civ. A. No. 2:93-0354.

United States District Court, S.D. West Virginia, at Charleston.

December 10, 1993.

COPYRIGHT MATERIAL OMITTED

William S. Druckman, Kent J. George, Charleston, WV, for plaintiffs.

James R. Watson, Steptoe & Johnson, Charleston, WV, Barbara G. Werther, Timothy F. Brown, Watt, Tieder, Killian & Hoffar, McLean, VA, for intervenor suggestee.

MEMORANDUM ORDER

COPENHAVER, District Judge.

This matter is before the court on the motion of the plaintiffs, Leroy M. Rashid and Richard C. Rashid, to dismiss this action or, in the alternative, to remand it to the Supreme Court of Appeals of West Virginia. In addition, plaintiffs seek their costs, including reasonable attorney fees, in bringing this motion.¹

I. Background

This action originated in the Circuit Court of Kanawha County, West Virginia, on June 24, 1991, when the Rashids filed suit to reduce to judgment an arbitration award rendered in their favor and against Schenck Construction Company and Schenck & Associates (hereinafter, collectively, Schenck). Schenck did not appear and default judgment was entered in favor of the Rashids on August 8, 1991. Thereafter in this same action, the Rashids on August 22, 1991, caused a writ of execution on the judgment to be issued and, by reason of the lien thereby created, caused a suggestion and summons thereon to be directed to and served upon USF & G pursuant to West Virginia Code, Chapter 38, title 5, section 10. By way of suggestion, the Rashids sought to collect their judgment against Schenck from USF & G on the theory that USF & G was liable to Schenck, the judgment debtor, on the basis of a surety bond issued to the Rashids. The bond guaranteed work to be performed by Schenck and contained a provision for joint and several liability.

On USF & G's motion, an order dismissing the suggestion was entered by the circuit court on June 24, 1992. The Rashids appealed to the Supreme Court of Appeals of West Virginia, which by order entered on April 23, 1993, reversed the lower court and remanded the case to the Circuit Court of Kanawha County with "directions to reinstate the suggestion action." Rashid v. Schenck Constr. Co. & USF & G, Intervenor, 438 S.E.2d 543 (W.Va.1993). In ordering reinstatement, the court concluded that a suggestion under section 38-5-10 is a proper means of collecting on a performance bond obligation when the surety is liable or indebted to the judgment debtor, as when they share joint liability on the bond. Id. at 548. The court reasoned that inasmuch as Schenck owes a debt to the Rashids and "the third party, USF & G, is liable to the judgment debtor, Schenck, through the joint and several liability they share upon the performance bond," the Rashids could collect their judgment against Schenck from USF & G by means of suggestion in accordance with the statute. Id. at 548. Thus, it was error to dismiss the suggestion.²

On May 4, 1993, USF & G filed its notice of removal with this court, asserting diversity jurisdiction and federal question jurisdiction which, according to USF & G, first became ascertainable from the West Virginia Supreme Court's opinion of April 23, 1993. That same day, a copy of the notice of removal was filed in Kanawha County Circuit Court. No copy of the removal notice was filed with the West Virginia Supreme Court, which retained jurisdiction over the action pending expiration of the thirty-day period allowed for petitions for rehearing. On May 24, 1993, the Rashids petitioned the West Virginia Supreme Court for rehearing for the purpose of clarification of its April 23, 1993, order and provided the court with a copy of the notice of removal. The petition for rehearing remains pending in the West Virginia Supreme Court.

On June 7, 1993, thirty-four days after the notice of removal was filed by USF & G, this motion to dismiss or remand was filed. The next day, USF & G filed its notice of removal with the West Virginia Supreme Court.

Insofar as the plaintiffs seek dismissal, rather than remand, the motion is predicated on USF & G's failure to file its notice of removal with the Clerk of the West Virginia Supreme Court until after the motion to remand was filed. Plaintiffs thus maintain that removal was not properly "effected," or was not timely "effected," and dismissal is appropriate. With respect to remand, the Rashids assert that no federal question is presented and that removal on the basis of diversity jurisdiction is untimely. They also maintain that removal is not proper because Schenck did not join in the petition for removal.

In response, USF & G reasserts its right to removal on the ground of federal question jurisdiction. USF & G further contends that the Rashids' objections as to the propriety of removal on the ground of diversity jurisdiction are all procedural defects which were waived by their delay in filing the motion to remand beyond the thirty days allowed by statute. Plaintiffs counter USF & G's assertion that the motion to remand is not timely by claiming that they are entitled to the benefit of Rules 6(a) and 6(e) of the Federal Rules of Civil Procedure.

II. Discussion

Resolution of the pending motion depends in the first instance on the timeliness of the motion to remand and the nature of the defects alleged by the plaintiffs. A motion to remand "on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a)."³ 28 U.S.C. § 1447(c). On the other hand the court may remand for lack of subject matter jurisdiction "any time before final judgment." Id. Here, plaintiffs concede that their motion to remand was not filed until thirty-four days after USF & G filed the notice of removal. They maintain, however, that in addition to the thirty days allowed by section 1447(c), they are entitled to three additional days under Rule 6(e) for service by mail and another day under Rule 6(a) because the thirty-third day was a Sunday.

Rule 6(e) provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.

Fed.R.Civ.P. 6(e). Most courts interpreting Rule 6(e) hold that it is applicable only when the time period starts to run from the time of service and service is made by mail. E.g., Mosel v. Hills Dept. Store, Inc., 789 F.2d 251, 253 (3rd Cir.1986); Fuller v. United States, 786 F.2d 1437, 1438 n. 1 (9th Cir. 1986); Combustion Eng'g, Inc. v. Miller Hydro Group, 739 F.Supp. 666, 668 (D.Me. 1990); National Sav. Bank of Albany v. Jefferson Bank, 127 F.R.D. 218, 222 (S.D.Fla. 1989); see also Clements v. Florida E. Coast Ry. Co., 473 F.2d 668, 670 (5th Cir.1973). See generally 2 Jeremy C. Moore & Brett A Ringle, Moore's Federal Practice ¶ 6.12 (2d ed. 1993); 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1171 (2d ed. 1987). But see Chott v. Cal Gas Corp., 746 F.Supp. 1377, 1377 (E.D.Mo. 1990).

Inasmuch as the time for filing a motion to remand under section 1447(c) is thirty days from the time the notice of removal is filed, not from the time it is served, the court concludes in accordance with the weight of the above-cited authority that plaintiffs are not entitled to the additional three days afforded under Rule 6(e). Thirty days from May 4, 1993, the day the removal notice was filed, is June 3, 1993, which was neither a holiday nor a weekend day. Thus, Rule 6(a) is inapplicable as well. Accordingly, to the extent that plaintiffs' motion to remand, which was filed on June 7, 1993, is based on defects in the removal procedure, the defects are deemed waived and remand must be denied. E.g. Leidolf by Warshafsky v. Eli Lilly & Co., 728 F.Supp. 1383, 1388 (E.D.Wis.1990); Gray v. Moore Business Forms, Inc., 711 F.Supp. 543, 546 (N.D.Cal. 1989).

Section 1446 of the removal statute governs the procedure for removal, providing in pertinent parts:

(a) A defendant or defendants desiring to remove any civil action ... shall ... file a notice of removal....⁴

(b) 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.

If the case stated by the initial pleading is not removable, a notice of 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

....

(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants ... shall file a copy of the notice with the clerk of such State court, which shall effect the removal

....

28 U.S.C. § 1446(a), (b), (d) (emphasis added).

Turning to the specific defects alleged by plaintiffs, it is seen that courts considering the question consistently find that the failure of all defendants to join in or consent to removal is a procedural defect which is waived unless it is raised prior to the expiration of the thirty-day limit...