Silva v. City of Madison

• Decision Date: 16 November 1995
• Docket Number: No. 93-2211,93-2211
• Citation: 69 F.3d 1368
• Parties: Francisco SILVA, Plaintiff-Appellant, v. CITY OF MADISON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1368

69 F.3d 1368

33 Fed.R.Serv.3d 994

Francisco SILVA, Plaintiff-Appellant, v. CITY OF MADISON, Defendant-Appellee.

No. 93-2211.

United States Court of Appeals Seventh Circuit.

Argued Feb. 28, 1995.

Decided Nov. 16, 1995.

Victor Arellano, Lawton & Cates, Madison, WI, Thomas Arnot (argued), Legal Assistance to Institutionalized Persons, University of Wisconsin Law School, Madison, WI, for Plaintiff-Appellant.

Michael J. Modl (argued), Bruce I. Gear, Axley Brynelson, Madison, WI, for City of Madison.

Before BAUER, COFFEY and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Francisco Silva commenced this civil action against the City of Madison ("the City") in the Circuit Court of Dane County, Wisconsin. He alleged employment discrimination and retaliation. However, he did not properly serve the City. Nevertheless, once the City came into possession of the complaint, it removed Mr. Silva's action to the United States District Court for the Western District of Wisconsin. However, it did not answer the complaint. Consequently, Mr. Silva moved for entry of a default judgment for failure to answer or otherwise defend the action. The district court denied the motion for a default judgment. Mr. Silva subsequently served the City with a summons and complaint. After discovery, partial summary judgment was granted for the City. Mr. Silva's remaining allegations were tried before a jury; a verdict was returned for the City. Mr. Silva now appeals the district court's judgment. He submits that the district court erred in denying his motion for a default judgment. Because the City never received proper service prior to the filing of the motion for default, we affirm the judgment of the district court.

I BACKGROUND

This action was originally commenced in state court on October 19, 1992. Mr. Silva alleged employment discrimination and retaliation. See 42 U.S.C. Sec. 1983; 42 U.S.C. Secs. 2000e, et seq. On October 20, 1992, he delivered a copy of the complaint and summons to counsel for the City (Attorneys Bradley D. Armstrong and Michael J. Modl of the law firm of Axley Brynelson). However, because the City had not authorized counsel to receive service of process on its behalf, this delivery did not constitute service upon the City. On October 22, 1992, Mr. Silva filed an amended complaint with the Dane County Circuit Court. On that same day, Mr. Silva, as he had done the first time, delivered a copy of the amended complaint to counsel for the City. The City still had not been served.

On November 5, 1992, the City filed a notice of removal in the United States District Court for the Western District of Wisconsin. On November 16, 1992, Mr. Silva filed a notice of motion, motion for entry of default and application for judgment of default on the ground that the City had failed to plead or otherwise defend. See Fed.R.Civ.P. 55(a). On December 1, 1992, after a pretrial conference, the district court denied Mr. Silva's request for a default judgment. Mr. Silva then properly served the City, and, on December 14, 1992, the City first answered the complaint. As we have already noted, the litigation then proceeded to judgment on the merits and the City prevailed.

II DISCUSSION

A.

Mr. Silva submits that, because the City did not file an answer or otherwise respond to Mr. Silva's complaint within the time prescribed by Federal Rule of Civil Procedure 81(c), the City had "failed to plead or otherwise defend" as required by Rule 55(a). He contends that the district court therefore erred in denying the motion for a default judgment. Mr. Silva concedes that, at the time he filed his motion for a default judgment, he had not served properly the City. ¹ He maintains, however, that, because the City received the amended complaint on October 22, 1992, ² Rule 81(c) of the Federal Rules of Civil Procedure required the City to file a responsive pleading within the later of twenty days after receipt of a copy of the amended complaint (November 12, 1992) or five days after filing the petition for removal (November 10, 1992). Because the City failed to file any responsive pleadings by November 12, 1993, Mr. Silva maintains that the district court erred in denying his motion for a default judgment under Rule 55(a).

B.

1.

In assessing Mr. Silva's contention, we begin with the text of Rule 81(c). See Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989); Roe v. O'Donohue, 38 F.3d 298, 302-03 (7th Cir.1994). We must remember, however, that a single rule cannot be read in a vacuum. It must be read in light of the statutory commands of the federal judicial code; it also must be read in light of the structure of the entire Rules of Civil Procedure. See Maybin v. Northside Correctional Ctr., 891 F.2d 72, 74 (4th Cir.1989) ("Rules of civil procedure must be considered in relation to one another and construed together."); Nasser v. Isthmian Lines, 331 F.2d 124, 127 (2d Cir.1964) ("[I]t is essential that we recognize that the Rules were intended to embody a unitary concept of efficient and meaningful judicial procedure, and that no single Rule can consequently be considered in a vacuum.").

Federal Rule of Civil Procedure 81(c) provides, in pertinent part:

These rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal. Repleading is not necessary unless the court so orders. In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleading, then filed, or within 5 days after the filing of the petition for removal, whichever period is longest.

Fed.R.Civ.P. 81(c) (emphasis added).

On its face, the Rule describes three circumstances that trigger the obligation to answer the complaint. If a defendant has not filed an answer when an action is removed to federal court, he must file a responsive pleading within the latest of the following periods: 1) twenty days after receipt of the complaint "through service or otherwise;" 2) twenty days after service of a summons upon a complaint which has been filed; or 3) five days after filing the petition for removal. Therefore, because it is the latest of these periods which defines the time within which a responsive pleading must be filed, a responsive pleading will be required under Rule 81(c) only when: the defendant is in receipt of the complaint; he has been served with a summons; and the complaint has been filed. Under the plain wording of the Rule, at the time Mr. Silva moved for an entry of default the City had not yet incurred the obligation to answer. Although the City had received a copy of the complaint, it had not yet been served with a summons.

2.

Mr. Silva asks that we not rest our decision on the plain wording of the Rule. He submits that the language in Rule 81(c) requiring service of the summons--the second, and, under the plain wording analysis set forth above, the controlling of the three periods--ought not apply to the situation presented by the case before us. In his view, this provision cannot be read by itself but must be interpreted in light of the relationship of this part of Rule 81(c) to 28 U.S.C. Sec. 1446(b). Specifically, he contends that the mention of a summons in the second time period of Rule 81(c) was intended to apply only to a situation in which the applicable state procedural rules did not require delivery of a complaint. The drafters wanted to make certain that, if state procedure permitted the commencement of a lawsuit by the service of a summons without a copy of the complaint, the time for answering would begin to run upon the service of the summons only if a copy of the complaint was available to the defendant through the court. In Mr. Silva's view, because Wisconsin rules require delivery of the complaint to the defendant upon service of process, this second time period of Rule 81(c) does not apply to this situation. Thus, he continues, the City's time to respond was defined by the longer of the two remaining periods. In this case, according to Mr. Silva's argument, the City's receipt of the complaint, even though not accompanied by proper service, triggered the twenty-day period within which a responsive pleading under Rule 81(c) is required. He concludes that, because the City did not file a responsive pleading within twenty days after the receipt of the complaint or five days after removal, the City was in default.

Our research, and that of the other courts that have examined Rule 81(c), makes clear that, as Mr. Silva submits, there is a direct relationship between the revision of Sec. 1446(b) and the revision of Rule 81(c). We set forth a thumbnail sketch of the history of that relationship. In 1948, Congress repealed 28 U.S.C. Sec. 72, which had provided that a petition for removal must be filed "at any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead." ³ The replacement statute, 28 U.S.C. Sec. 1446(b) (1948), provided that "[t]he petition for removal of a civil action or proceeding may be filed within twenty days after commencement of the action or service of process, whichever is later." ⁴ In enacting this provision, Congress intended to create uniformity in the time for filing petitions to remove civil actions throughout the federal courts as well as to allow adequate time for removal. ⁵ Therefore, although under Sec. 72 removal was timely as long as it was requested before a responsive pleading was required under the applicable state law, the new version required removal within a uniform...