Roberson v. Orkin Exterminating Co., Inc.

• Decision Date: 16 August 1991
• Docket Number: No. S91-331M.,S91-331M.
• Citation: Roberson v. Orkin Exterminating Co., Inc., 770 F.Supp. 1324 (N.D. Ind. 1991)
• Parties: Edgar K. ROBERSON, et al., Plaintiffs, v. ORKIN EXTERMINATING COMPANY, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

770 F. Supp. 1324

Edgar K. ROBERSON, et al., Plaintiffs, v. ORKIN EXTERMINATING COMPANY, INC., et al., Defendants.

No. S91-331M.

United States District Court, N.D. Indiana, South Bend Division.

August 16, 1991.

Thomas M. Barr, Nashville, Ind., Jim Brugh, Logansport, Ind., for plaintiffs.

Andrew C. Charnstrom, Andrea L. Cohen, Indianapolis, Ind., for defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

Plaintiffs Edgar and Mary Roberson object to the defendant's notice of removal and move for remand. The court held a telephonic hearing on these matters on August 13, 1991 and now, for the reasons that follow, finds that the case must be remanded because it was removed too late.

I.

On September 18, 1990, the Robersons filed their complaint for damages for breach of contract against defendants Orkin Exterminating Company, Inc. ("Orkin") and Orkin Exterminators ("Exterminators") in the Cass Circuit Court, Cass County, Indiana. The Robersons seek both compensatory and punitive damages; because Indiana practice forbids a prayer for a specific award in the complaint, IND.TR.R. 8(A), the complaint seeks an unspecified amount. The complaint alleges that the "Plaintiffs are husband and wife, and at all times relevant hereto have resided at Rural Route 4, Box 270A, Logansport, Cass County, Indiana"; that Orkin is a Delaware corporation with its principal place of business in Atlanta, Georgia and doing business in Indiana; and that Exterminators is a "licensed Orkin dealership with its principal place of business in Kokomo, Howard County, Indiana."

Both defendants received service of the Robersons' complaint on September 21, 1990 and appeared by counsel on October 15, 1990.

On July 16, 1991, Orkin filed its notice of removal in this court pursuant to 28 U.S.C. §§ 1441 and 1446, invoking original federal jurisdiction under 28 U.S.C. § 1332. In its notice, Orkin states that it first became aware that the plaintiffs were citizens of Indiana and that the amount in controversy exceeded $50,000.00 when the Robersons served their responses to interrogatories on June 17, 1991. Orkin contends, therefore, that its notice for removal has been timely filed within the thirty-day period proscribed by 28 U.S.C. § 1446(b), computing that period from its receipt of the plaintiffs' responses to interrogatories.

The Robersons object to removal on procedural grounds. They concede that this case could have been brought in federal court based on diversity jurisdiction, but argue that Orkin failed to remove the case at the appropriate time. The Robersons argue that it is clear from the face of their complaint that diversity jurisdiction existed in that:

(a) the first paragraph alleges that Plaintiffs "at all times relevant hereto have resided at RR # 4, Box 270A, Logansport, Cass County, Indiana";

(b) the second paragraph alleges that Defendant Orkin Exterminating Company is a Delaware Corporation doing business in the State of Indiana, with its principal headquarters in Atlanta, Georgia;

(c) the fourth paragraph alleges the formation of a contract between Plaintiffs and Defendants occurring on or about the 12th day of May, 1986, which would indicate, in combination with the first paragraph, that Plaintiffs had resided in Logansport, Indiana for at least four years and four months as of the date of the filing of their Complaint;

(d) the twelfth paragraph alleges, in regard to damages to the Defendants' home "that the structure is beyond repair, and Plaintiffs only recourse is to demolish the home and to rebuild", and the thirteenth paragraph seeks the imposition of punitive damages against the Defendants.

Accordingly, the Robersons assert that Orkin was on notice that this action could be brought as a diversity case in federal court when served with the complaint and that Orkin's failure to file its notice of removal within thirty days of service bars removal at this juncture.

II.

Before addressing the plaintiffs' objection and motion for remand, the court must consider an issue not directly raised by either party, but central to the viability of removal. Exterminators is a purported Indiana resident-defendant to this action. Orkin states that no such entity exists and that the Robersons have agreed to the dismissal of that defendant, but that dismissal has not yet occurred. Rather, when this cause was removed to this court, Orkin and Exterminators both were named as defendants.

Exterminators' presence as a defendant in this action would bar removal for two reasons. First, since both plaintiffs are Indiana residents, Exterminators' presence as a defendant would defeat diversity of citizenship if Exterminators is an Indiana resident as alleged. 28 U.S.C. § 1332. Second, Exterminators has not joined in the notice of removal as required of all named defendants under 28 U.S.C. § 1441. Keller v. Honeywell Protective Services, 742 F.Supp. 425 (N.D.Ohio 1990); Santa Rosa Medical Center, Inc. v. Converse of Puerto Rico, Inc., 706 F.Supp. 111 (D.P.R.1988); Garside by Garside v. Osco Drug, Inc., 702 F.Supp. 19 (D.Mass.1988).

Remand on this ground alone would disserve the parties and the two courts involved. This impediment to removal is easily cured following remand. A plaintiff's dismissal of a non-diverse defendant named in the original pleading ordinarily creates jurisdiction for removal. Nicholstone Cos. v. Ecam Publications, Inc., 742 F.Supp. 432 (M.D.Tenn.1990); Mike Silverman & Associates v. Drai, 659 F.Supp. 741 (C.D.Cal.1987). Orkin then could remove the action anew. Wilson v. General Motors Corp., 888 F.2d 779, 782 (11th Cir. 1989); Bryant v. Ford Motor Co., 844 F.2d 602 (9th Cir.1987) (en banc), cert. denied, 488 U.S. 986, 109 S.Ct. 542, 102 L.Ed.2d 572 (1988). The parties have not argued this objection to removal, and the principal issues would remain upon the renewed removal. Because those issues foreclose this removal, as well as subsequent removals, the court turns to the issues argued by the parties.

III.

Section 1441 of Title 28 of the United States Code authorizes removal of state court cases that could have been brought originally in a federal court. That section provides in part:

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.

28 U.S.C. § 1441(a). The procedure for removal of a state action to federal court is set forth in 28 U.S.C. § 1446.

(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such a defendant or defendants in such action.

(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 the 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.

28 U.S.C. § 1446.

The fundamental principle of the general removal statute is that the time limitation on seeking removal begins to run when the defendant receives notice of the action, not when the action commences. Wilson v. General Motors Corp., 888 F.2d at 781; Ortiz v. General Motors Acceptance Corp., 583 F.Supp. 526 (N.D.Ill.1984); Bobbin Publications, Inc. v. Klingenberg, 525 F.Supp. 245 (D.S.C.1981). The time limits in § 1446, while not jurisdictional, are mandatory; failure to comply with those limits bars removal. Northern Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270 (7th Cir.1982); Royal v. State Farm Fire & Casualty Co., 685 F.2d 124 (5th Cir.1982).

The purpose of the 30-day limitation is twofold: to deprive the defendant of the undeserved tactical advantage that he would have if he could wait and see how he was faring in state court before deciding whether to remove the case to another court system; and to prevent the delay and waste of resources involved in starting a case over in a second court after significant proceedings, extending over months or even years, may have taken place in the first court.

Wilson v. Intercollegiate (Big Ten) Conference Athletic Ass'n, 668 F.2d 962, 965 (7th Cir.), cert. denied, 459 U.S. 831, 103 S.Ct. 70, 74 L.Ed.2d 70 (1982).

A federal court cannot extend the time limit for filing a notice of removal. Balestrieri v. Bell Asbestos Mines, Ltd., 544 F.Supp. 528 (E.D.Pa.1982); Mason v. Marathon Oil Co., 521 F.Supp. 1012 (S.D.Ill. 1981). Several courts have noted that the thirty-day time limit for petitioning for removal will be strictly construed against a defendant. Lewis v. Louisville & Nashville R.R. Co., 758 F.2d 219 (7th Cir.1985); Marion Corp. v. Lloyds Bank, PLC, 738 F.Supp. 1377 (S.D.Ala.1990); Shadley v. Miller, 733 F.Supp. 54 (E.D.Mich.1990).

The burden of proof is on the petitioning defendant to establish its...