Ricciardi v. Lazzara Baking Corporation
| Decision Date | 13 May 1940 |
| Docket Number | No. 430.,430. |
| Citation | 32 F. Supp. 956 |
| Parties | RICCIARDI v. LAZZARA BAKING CORPORATION. |
| Court | U.S. District Court — District of New Jersey |
Peter Cohn, of Paterson, N. J., for plaintiff.
Carl F. Nitto, of Passaic, N. J., for defendant.
This case was removed from the Second District Court of the City of Paterson by an order of the Judge of that court, and the plaintiff now moves to remand to the court from whence it came.
The City District Court is what may be termed a small cause court in the sense that its jurisdiction is limited not to exceed $500 and the pleadings therein are less formal and do not follow the practice and procedure of the higher courts of the state. The cause of action is set forth in a written "State of Demand" and, when the same is served with the summons, a notice may be indorsed thereon requiring the defendant to file a written specification of the defenses intended to be made at the trial. When such notice is given, the specification of defenses must be filed on or before the return date of the summons. This practice was followed in the instant case and the question now arises as to whether or not the filing of the specification of defenses, pursuant to the statutory practice of the court, is to be construed as the filing of an answer or plea when considered in connection with the provisions of the Removal Act. 28 U.S.C.A. § 72. This section provides that a petition for removal must be filed "at the time, or any time before the defendant is required by the laws of the State or the rule of the State court * * * to answer or plead * * *." The summons in this case was returnable on January 27, 1939, and the specification of defenses was filed on the same day. The petition for removal does not bear the date of its filing, but since it was not verified until February 3, 1939, it was filed some time after the filing of the specification of defenses.
In view of the informalities which properly attend the practice in the district courts of the State, it is my view that the filing of the specification of defenses should not be considered as rising to the dignity or importance of an answer or plea within the meaning of the New Jersey practice. This view is strengthened by the opinion of Mr. Justice Case in Besser v. Krasny, 114 N.J.L. 146, 176 A. 146, 148, wherein he holds that "* * * the statutory specification is not to be construed as an answer", and cites Tricoli v. Tramonde, 95 N.J.L. 363, 113 A. 230, as follows: "The legal effect * * * is not to deprive a defendant, even though he fails to specify his defenses, of the right to challenge, by cross-examination or otherwise, the character or sufficiency of the plaintiff's proof, to make out his right to recover." The above cited opinion of Mr. Justice Case should be read in connection with the issue here, since it furnishes a true outline of the position which the local district courts, organized under the state statute, fill in the state judicial system. It has a strong bearing on the construction to be placed upon the pleadings of that court because of the unique position the court fills in disposing of small causes. It is my view that no answer or plea in the technical sense occurs in the local district courts until the case is opened for actual trial, the answer or plea is then oral. The statute limiting the time for removal might therefore within reason be so construed in this case that a valid petition for removal could be filed at any time preceding defensive oral action at the trial. It would then follow that the petition in the instant case was filed in time. The issue, however, can not be thus easily and quickly disposed of since this court is bound by the rule of stare decisis.
In Martin v. Baltimore & O. R. Co., Gerling v. Baltimore & O. R. Co., 151 U.S. 673, 14 S.Ct. 533, 538, 38 L.Ed. 311, the United States Supreme Court held, with relation to the meaning of the Removal Act: "Construing the provision now in...
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