Raymond's, Inc. v. New Amsterdam Casualty Company, Civ. A. No. 56-926.
| Decision Date | 27 November 1956 |
| Docket Number | Civ. A. No. 56-926. |
| Parties | RAYMOND'S Inc. v. NEW AMSTERDAM CASUALTY COMPANY. |
| Court | U.S. District Court — District of Massachusetts |
Guterman, Horvitz & Rubin, Boston, Mass., for plaintiff.
Samuel H. Cohen, Boston, Mass., for defendant.
The sole question is whether defendant has made a timely removal from the state court. More precisely, the issue is whether the 20 day period, specified in 28 U.S.C. § 1446, begins to run from the return day when plaintiff filed in a Massachusetts state court a writ and declaration in an action at law, the declaration not having been (a) previously served upon defendant, or (b) actually received by him, or (c) filed at the time defendant was served with summons.
The relevant removal statute is § 83 of The Act of May 24, 1949, c. 139, 63 Stat. 101, 28 U.S.C. § 1446. It provides that 28 U.S.C. § 1446 shall be amended to read:
"(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."
This paragraph contemplates these situations: (1) receipt of the declaration by the defendant through service, (2) receipt otherwise, and (3) service of summons after the declaration has been filed in court. Of these three possible situations only the second is here relevant.
Plaintiff commenced its action of contract by a writ of attachment and summons issued out of the Superior Court for the County of Suffolk, under date of August 28, 1956. Authority for this method of commencing suit is found in Mass.G.L. c. 223, §§ 16 and 18. In accordance with Mass.G.L. c. 223, § 14, plaintiff made the writ returnable at the Superior Court October 1, 1956. Taking advantage of §§ 11 and 12 of Mass.G.L. c. 231 which provide that "the writ need not contain a declaration" but that "the declaration * * * may be filed in the clerk's office on or before the return day of the writ", plaintiff filed in the state court on October 1, 1956, the return day, both the writ and declaration. Defendant first learned of the declaration when, as a matter of courtesy, plaintiff mailed the declaration to it sometime after October 4, 1956. On October 24, 1956 defendant filed in this court its petition for removal. If the 20 day period is calculated from October 1, the removal petition was tardy.
In my opinion the petition was filed too late because I have concluded that the 20 day period began to run from the day set for the return of plaintiff's writ, provided that on or before that day the state court had received the declaration. I confess that this conclusion does not appear clearly in the language of the 1949 statute, but I believe it is warranted by the text of the statute, by its history and by its policy.
The removal act refers to "receipt * * * through service or otherwise". This language is sufficiently broad to cover receipt by a party's statutory agent or one authorized to receive and show. Of course, the federal statute does not expressly designate the state court as defendant's agent to receive the declaration. However, the federal statute takes advantage of the Massachusetts statute. That local law requires plaintiff to deposit the declaration with the state court without necessarily serving it on defendant or otherwise communicating it to defendant. Thus the Massachusetts practice treats the state court as receiving the declaration for and on behalf of defendant. Defendant is regarded as having notice that the court on the return day will be holding the declaration, if it has been seasonably filed. The court in fact may have received the declaration earlier, if, in accordance with Mass.G.L. c. 231, § 12, plaintiff has proceeded expeditiously. But since defendant could hardly know of such extraordinary promptness, I conclude that it is not until the return day that he is put on notice that the state clerk is holding the declaration. From then on, whether or not defendant looks at the clerk's file, defendant is treated under Massachusetts law as being in constructive receipt of the declaration—and no further receipt is required to impose upon defendant obligations to answer and in general to follow the progress of the case. Since Massachusetts treats defendant as in receipt of the declaration, I rule that the federal statute in calculating removal time also treats defendant as in receipt of the declaration from the return day, provided that the declaration is then on file.
This conclusion is buttressed by the history...
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