Stone Street Capital, Inc. v. McDonald's Corp., CIV.A. DKC2003-2723.

• Decision Date: 06 November 2003
• Docket Number: No. CIV.A. DKC2003-2723.,CIV.A. DKC2003-2723.
• Citation: Stone Street Capital, Inc. v. McDonald's Corp., 300 F.Supp.2d 345 (D. Md. 2003)
• Parties: STONE STREET CAPITAL, INC. v. McDONALD'S CORPORATION, et al.
• Court: U.S. District Court — District of Maryland

300 F.Supp.2d 345

STONE STREET CAPITAL, INC. v. McDONALD'S CORPORATION, et al.

No. CIV.A. DKC2003-2723.

United States District Court, D. Maryland.

November 6, 2003.

Mark D. Maneche, Venable Baetjer and Howard LLP, Michael Schatzow, Venable Baetjer and Howard LLP, Baltimore, MD, for Stone Street Capital, Inc., Plaintiff.

Thomas Matthew Buchanan, Winston and Strawn LLP, Kenneth William Irvin, Morrison and Foerster LLP, Lois Kim Perrin, Morrison and Foerster LLP Washington, DC, for McDonald's Corporation, George Chandler, Simon Marketing, Inc., Defendants.

MEMORANDUM OPINION

CHASANOW, District Judge.

Presently pending and ready for resolution is Plaintiff's motion to remand. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the following reasons, the motion will be granted.

I. Background

On September 23, 2003, Simon Marketing, Inc., one of the defendants, filed a Notice of Removal from the Circuit Court for Montgomery County, with the consent of the other defendants, McDonald's Corporation and George Chandler. The notice recited that counsel attempted to file the notice electronically during the evening of September 22, but those attempts were unsuccessful. Blaming the failure on "technical difficulties," counsel requested that the notice be deemed timely.¹

On October 1, 2003, Plaintiff moved for remand (and requested an award of attorney's fees) on the basis of the untimely removal. In its opposition, Simon Marketing requests the court to exercise discretion to deem the notice timely filed, or alternatively to enlarge the time for removal, or finally, to retain jurisdiction over the case despite the technical, procedural defect of the late filing. Simon Marketing also opposes the request for fees.

While the removal issue was developing, Simon Marketing also filed an emergency motion for extension of time to answer and to stay the proceedings, which is opposed by Plaintiff. This case was conditionally transferred as multidistrict litigation pursuant to 28 U.S.C. § 1407 on October 30, 2003. The transfer order is stayed for a period of 15 days, and this remand decision is being filed prior to the expiration of the stay. In re Baycol Products Liability Litigation, 269 F.Supp.2d 1376 (Jud.Pan.Mult.Lit.2003). Accordingly, this court retains jurisdiction to resolve the motion to remand.

II. Standard of Review

On a motion to remand, "because the federal courts are reluctant to interfere with matters properly before a state court, courts must `strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court,' Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 507 (E.D.Va.1992); accord, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941); Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.1993)." Richardson v. Phillip Morris Inc., 950 F.Supp. 700, 701-2 (D.Md.1997).

Title 28 U.S.C. § 1446(b) provides that:

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 ...

Section 1447(c) provides that:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).

III. Analysis

It is undisputed that Simon Marketing was served on August 22, 2003 and McDonald's was served on August 21, 2003. George Chandler was served later. The thirty day period for removal by McDonald's and Simon Marketing ended on Monday, September 22, 2003. It is also undisputed that the Notice of Removal was not effectively filed with the clerk by midnight on that date.² Instead, Simon Marketing contends that the attempted filing through the electronic system should be deemed to constitute "filing," or at least give rise to an extension of the filing deadline, or result in the court determining to retain jurisdiction nonetheless.

A. Filing

Although the statute prescribes "filing" a notice of removal within thirty days of service, the statute does not define the operative term "filing." When faced with another statute lacking a necessary definition, the Supreme Court affirmed a trial court, which had turned to other sources for enlightenment, and quoted the trial court's reasoning:

"The word `file' was not defined by Congress. No definition having been given, the etymology of the word must be considered and ordinary meaning applied. The word `file' is derived from the Latin word `filum,' and relates to the ancient practice of placing papers on a thread or wire for safe-keeping and ready reference. Filing, it must be observed, is not complete until the document is delivered and received.... A paper is filed when it is delivered to the proper official and by him received and filed. Bouvier's Law Dict.; Hoyt v. Stark, 134 Cal. 178, 66 P. 223 (1901); Wescott v. Eccles, 3 Utah 258, 2 Pac. 525 (1883); Re Von Borcke (D.C.), 94 Fed. 352 (D.N.J.1899); Mutual L. Ins. Co. v. Phinney, 22 C.C.A. 425, 76 Fed. 617 (1896). Anything short of delivery would leave the filing a disputable fact, and that would not be consistent with the spirit of the act."

United States v. Lombardo, 241 U.S. 73, 76-77, 36 S.Ct. 508, 60 L.Ed. 897 (1916). Lombardo has long been considered as establishing the "physical delivery" rule such that the date of delivery is the date of filing for statutory purposes. See, e.g., Wiggins v. Internal Revenue Service, 59 A.F.T.R.2d 87-445, 87-1 USTC P 9180, 1986 WL 15574, *2 (D.Md.1986).³

The provisions of the Federal Rules of Civil Procedure concerning filing supplement, rather than alter, the Lombardo approach:

The filing of papers with the court as required by these rules shall be made by filing them with the clerk of court, .... A court may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A paper filed by electronic means in compliance with local rule constitutes a written paper for the purpose of applying these rules. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or any local rules or practices.

Fed.R.Civ.P. 5(e).⁴ The District of Maryland has adopted a local rule and procedures for electronic filing. Local Rule permits electronic filing in accord with the procedures adopted by the court. Administrative Order 2003-2 (February 20, 2003). The court's Electronic Filing Requirements and Procedures (2nd ed., 8/11/2003), provides:

2. Complaints and other Case Initiating Documents

The current district court CM/ECF software does not have the capability of accepting credit card payments over the Internet. Accordingly, at present attorneys are not allowed to open cases electronically. To file a new case, you should submit to the Clerk:

1 paper copy of the complaint or other initiating document, along with any attachments and/or motions or other documents being filed at the same time

1 paper copy of the civil cover sheet

A 3½" diskette or CD Rom containing PDF versions of the complaint or other initiating document(s), civil cover sheet, and any attachments (subject to the procedures governing lengthy attachments, supra), and/or motions or other documents being filed at the same time. Each attachment, motion, or other document should be a separate PDF. It is not necessary to submit a separate diskette or CD for each document.

* * * * * *

The Clerk's Office will open the case and electronically file the complaint or other initiating document and any other documents submitted. You will be electronically notified of the filing of the complaint. The notification will include your case number. We will issue the summonses, scan them, and docket the PDF versions. The paper summonses will be returned to you for service or, if appropriate, sent to the U.S. Marshal for service. Your diskette will be returned to you along with the summonses. The paper copies of the complaint and other documents will be sent to the assigned judge for his or her chamber's file. The official court documents will be the PDF versions electronically filed.

The next section of the procedures manual contains instructions for removals:

When removing a case from state court, you should:

a. Scan any state court documents being filed which do not exist in electronic format and are less than 15 pages. The 15 page limit applies to individual documents — it is not cumulative. Each document should be scanned separately. Any state court document which is 15 pages or longer and which would have to be scanned should be treated as a lengthy exhibit.

b. Submit to the clerk a CD or diskette containing PDF versions of the notice of removal, civil cover sheet, and state court documents. The notice and each state court document must be a separate PDF.

c. Also provide the clerk with a paper copy of the notice of removal, civil cover sheet, and any state court documents filed.

Under the purely paper filing system, circumstances arose where a litigant presented paper pleadings to the clerk that were deficient in some way, either the filing fee was missing, or the format of the papers was incorrect. Prior to the amendment to Rule 5(e) in 1991, courts developed a set of principles to deal with those circumstances. As summarized in Central States, Southeast and Southwest Areas Pension Fund. v. Paramount Liquor Company, 34 F.Supp.2d 1092, 1094-95 (N.D.Ill.1999):

Although Lombardo was decided before the Federal Rules of Civil Procedure were promulgated, courts have relied on it and Federal Rules of Civil Procedure 3, 5(e), and...