Riggs v. Fling Irrigation, Inc.

• Decision Date: 25 February 2008
• Docket Number: No. 3:07-cv-00509-FDW.,3:07-cv-00509-FDW.
• Citation: 535 F.Supp.2d 572
• Court: U.S. District Court — Western District of North Carolina
• Parties: Bradford A. RIGGS, Plaintiff, v. FLING IRRIGATION, INC., Michael D. Fling, and Christopher M. Beck, Defendants.

535 F.Supp.2d 572

Bradford A. RIGGS, Plaintiff, v. FLING IRRIGATION, INC., Michael D. Fling, and Christopher M. Beck, Defendants.

No. 3:07-cv-00509-FDW.

United States District Court, W.D. North Carolina, Charlotte Division.

February 25, 2008.

Jared E. Gardner, James, McElroy & Diehl, PA, Charlotte, NC, for Plaintiff.

G. Bryan Adams, III, Van Hoy, Reutlinger, Adams & Dunn, Charlotte, NC, for Defendants.

ORDER

FRANK D. WHITNEY, District Judge.

THIS MATTER comes now before the Court upon Plaintiffs Motion to Remand this case to North Carolina state court (Doc. No. 4). Defendants have responded to Plaintiffs Motion, Plaintiff has in turn replied, and the matter is now ripe for review. For the following reasons, Plaintiffs Motion is DENIED.

BACKGROUND

On October 23, 2007, Plaintiff commenced this lawsuit in Mecklenburg County Superior Court by filing an Application and Order to Extend Time to File Complaint ("Application and Order") pursuant to North Carolina Rule of Civil Procedure 3(a). The Mecklenburg County Clerk of Superior Court subsequently issued a Summons against each "Defendant and entered an Order authorizing Plaintiff to file his Complaint within twenty days. On October 24, 2007, Plaintiff filed an Amended Application and Order to Extend Time to File Complaint ("Amended Application and Order") in order to add a claim for violations of South Carolina Wage and Hour law, which the Clerk of Superior Court allowed. Both the Application and Order and the Amended Application and Order (collectively "Applications and Orders") included the following language:

The nature and, purpose of this action is to recover damages for Defendants' wrongful termination of Plaintiffs employment, retaliation against Plaintiff for filing a workers' compensation claim, and violations of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et. seq., in failing for at least the Past three years to pay Plaintiff wages and overtime compensation to which he is entitled. Defendant Fling Irrigation, Inc., was served with the Summons issued against it and with the Applications and Orders on October 25, 2007. Defendants Michael Fling and Christopher Beck were served with the Summons issued against them and the Applications and Orders on October 29, 2007. On October 30, 2007, Plaintiff filed his Complaint in Mecklenburg County Superior Court. The Complaint was served upon Defendant Fling Irrigation on November 5, 2007, and on Defendants Fling and Beck on November 6, 2007. Defendants filed their Notice of Removal on December 4, 2007, forty days after Fling Irrigation was served with the Applications and Orders, thirty-six days after Fling and Beck were so served, but only twenty-nine and twenty-eight days, respectively, after Fling Irrigation and Fling and Beck were served with the Complaint.

REMOVAL UNDER 28 U.S.C. § 1446(b) AND Murphy Brothers

Under 28 U.S.C. § 1441(a), "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." Neither party has raised any concerns over whether this Court would have had original jurisdiction over this action.¹ Rather, the concern has been whether, under § 1446, notice of removal was made in a timely and procedurally correct fashion. Section 1446(a) states that defendants desiring to remove a civil action to federal court "shall file ... a copy of all process, pleadings, and orders served upon such defendant or defendants in such action." Section 1446(b) states that the notice of removal "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." Plaintiff argues that this action was incorrectly removed from North Carolina state court because (1) Defendants filed their Notice of Removal more than thirty days after they were formally served with the Applications and Orders,² and (2) Defendants failed to file a copy of all process, pleadings, and orders with which it had been served. The Court will address these arguments in turn, focusing primarily upon Plaintiffs first argument.

The United States Supreme Court had occasion to address § 1446(b) in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). In Murphy Brothers, the Court addressed the issue of whether the thirty-day period under § 1446(b) may start before official summons, such as when defendant is given a "courtesy copy" of the complaint before it is actually filed. Id. at 347, 119 S.Ct. 1322. On that issue, the Court held that "a named defendant's time to remove is triggered by simultaneous service of the summons and complaint or receipt of the complaint, `through service or otherwise,' after and apart from service of the summons, but not, by mere receipt of the complaint unattended by any formal service." Id. at 347-48, 119 S.Ct. 1322. In reaching its holding, the Court reviewed the legislative history of § 1446(b), noting that it was amended by Congress in 1949 because, "as first framed, [it] did not `give adequate time and operate uniformly' in all states." Id. at 351, 119 S.Ct. 1322. The Court stated that Congress's revision of § 1446(b) was to "ensure that the defendant would have access to the complaint before commencement of the removal period." Id. The Court also made note of divergent state practices, including the policy of New York, in which the action may be commenced with the service of the summons only. The Court's summary of these divergent state practices and their effect on the thirty-day removal clock is worth stating in some detail. The Court stated:

[T]he various state provisions for service of the summons and the filing or service of the complaint fit into one or another of four main categories. In each of the four categories, the defendant's period for removal will be no less than 30 days from service, and in some categories, it will be more than 30 days from service, depending on when the complaint is received. ... [T]he possibilities are as follows. First, if the summons and complaint are served together, the 30-day period for removal runs at once. Second, if the defendant is served with the summons but the complaint is furnished to the defendant sometime after, the period for removal runs from the defendant's receipt of the complaint. Third, if the defendant is served with the summons and the complaint is filed in court., but under local rules, service of the complaint is not required, the removal period runs from the date the complaint is made available through filing. Finally, if the complaint is filed in court prior to any service, the removal period runs from the service of the summons.

Id. at 354, 119 S.Ct. 1322 (emphasis added). Thus, it appears as if the Supreme Court had the policies of states such as New York and North Carolina in mind and expressly stated that in such states, where summons precedes the complaint, the thinty-day clock will not begin until after defendant has been served with the complaint.

The foregoing reading of Murphy Brothers has been rejected by the United States Court of Appeals for the Second Circuit in Whitaker v. American Telecasting, Inc., 261 F.3d 196 (2nd Cir.2001), an opinion upon which Plaintiff relies heavily. In Whitaker, the court stated:

The principal question we must answer is whether the Supreme. Court's decision in Murphy Brothers requires a defendant's receipt of the complaint for triggering the removal period. We conclude that it does not.... The history and text of section 1446(b) clearly make the defendant's receipt of "the initial pleading" the relevant triggering event, which is any pleading (and not necessarily the complaint) containing sufficient information to enable the defendant to intelligently ascertain the basis for removal.

Id. at 198. The court stated that the Supreme Court in Murphy Brothers "did not discuss the term `initial pleading' or decide that only a complaint can constitute the initial pleading under section 1446(b)" and that the Court's language describing the four possibilities involving, divergent state practices was merely an "illustration" of its holding that formal service of process is necessary to start the thirty-day clock. Id. at 202 n. 3. The court ultimately held that a summons with notice that "provides information from which a defendant can ascertain removability" may start the thirty-day removal period, whether or not the complaint has been served. Id. at 204.

A district court within the Eastern District of New York has gone even farther, stating that Murphy Brothers's four possibilities for divergent state practices do not apply at all to the instant issue. Brooklyn Hospital Center v. Diversified Information Technologies, Inc., 133 F.Supp.2d 197, 203 (E.D.N.Y.2001). In Brooklyn Hospital, the court stated:

[The Supreme Court's] statement that, "if the defendant is served with the summons but the complaint is furnished to the defendant sometime after, the period for removal runs from the defendant's receipt of the complaint," does not refer to a summons with notice filed pursuant to New York law and is dictum that does not control the determination of the issue at bar. In light of the presumption against federal jurisdiction in the context of removal, I conclude that a summons with notice filed pursuant to New York law constitutes an initial pleading for purposes of § 1446(b) if it provides sufficient information for a defendant to ascertain intelligently the basis for removal.

Id. (emphasis added) (citations omitted). Thus, because the court construed the Supreme Court's statement as dictum, it did not feel compelled to follow it.

Whitaker and Brooklyn Hospital's...