Youngson v. Lusk, Civ. No. 56.
| Decision Date | 03 January 1951 |
| Docket Number | Civ. No. 56. |
| Citation | 96 F. Supp. 285 |
| Parties | YOUNGSON v. LUSK et al. |
| Court | U.S. District Court — District of Nebraska |
COPYRIGHT MATERIAL OMITTED
Druliner & Druliner, Benkelman, Neb., Butler & Eisenhart, Cambridge, Neb., and Perry & Perry, Lincoln, Neb., for plaintiff.
Stiner & Boslaugh, Hastings, Neb., for defendants.
The plaintiff moves to remand this case to the District Court of Thayer County, Nebraska in which it was instituted. The assigned grounds of the motion are, (a) the untimeliness of the attempted removal, (b) the failure of the petition for removal to set out the jurisdictional facts supporting removal, and (c) the failure of the defendants to file herein an affidavit showing "service of the petition for removal" and their filing of a copy of such petition with the clerk of the state court. Reasonably appraised and with due regard to its incorporation by reference of copies of the pleadings, process and orders of the state court, the petition for removal must be regarded as adequate in its averments. And, without defining the statutory requirements upon the point, the court considers that the removing defendants' proof of their notice to the plaintiff of the petition for removal and of their filing of a copy of it in the office of the clerk of the state court sufficiently complies with Title 28 U.S.C.A. § 1446(e). Diversity of citizenship and the jurisdictional sum or amount in controversy are unquestioned. The vital question, and the only one argued by the plaintiff, is whether removal was perfected within the time limited in Title 28 U.S.C.A. § 1446(b).
The action is for damages allegedly sustained in consequence of the negligence of Robert Ragan, the driver of a truck owned by J. D. Lusk and, with his consent and direction, operated by the defendant partnership. All defendants being citizens and residents of states, or a state, other than Nebraska, of which the plaintiff is a citizen and resident, service of process was effected under Section 25-530 R.S.Neb. 1943, 1949 Supplement. In accomplishing such service the sheriff of Lancaster County, Nebraska on October 20, 1950 delivered to the Secretary of State two copies of the summons and one copy of the petition for each defendant and paid to the Secretary the sum of $8. An argument by the defendants that only two copies of the summons in all were delivered to the Secretary and that in consequence no valid service has been had is so completely without foundation as to be altogether untenable. Obviously in making the service each partner in the defendant partnership was regarded as a defendant, as the Secretary's receipt assumes to identify four defendants; and the $8 fee paid confirms that view. Then, on October 24, 1950 one of the plaintiff's attorneys by United States mail transmitted to each defendant certified copies of the petition, praecipe, summons, and return with a signed notice of the institution of the suit and of the service of summons therein on the Secretary of State, as statutory attorney for the defendants for the receipt of process; and on the same day he subscribed and swore to an affidavit in proof of his action which he filed on October 25, 1950.
The petition for removal and a bond on removal were filed in the office of the clerk of this court on November 15, 1950, and a further bond was filed on November 16, 1950. November 15, 1950 was the twenty-sixth day after the delivery of copies of process and payment of fees to the Secretary of State, the twenty-second day after the making, and the twenty-first day after the filing, of the affidavit of the attorney touching the mailing of the material mentioned in the affidavit.
By Title 28 U.S.C.A. § 1446(b), it is provided, in part, that: "The petition for removal of a civil action or proceeding shall be filed within twenty 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 twenty 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."
The flexibility of the quoted language allows its broad application to the varied practices of the several states, in some of which the process precedes, in others of which it follows, the filing of the petition, and some of which require, and others do not require, the formal service of the petition or a copy thereof on the defendant. Since in Nebraska the filing of the petition precedes the service of process in an action, and the petition is not required to be served on the defendant, infra, the critical date from which the twenty-day period must be computed is the date of service of summons on the defendant. And in the present instance that service must be understood in the light of the full requirements of the statute respecting the details of such service.
All parties recognize the mandatory character of the statutory requirement touching the time for removal of actions, unless untimeliness is waived. And it is not waived on this occasion, but, rather, is vigorously urged as a ground for the present motion.
The Nebraska statutory provision, Section 25-530 R.S.Neb. 1943, 1949 supplement, respecting service of the character and in the circumstances involved, so far as is material, follows: "* * * Service of such process shall be made by serving a copy thereof upon the Secretary of State, or by filing such copy in his office, together with a fee of two dollars, and such service shall be sufficient service upon the said nonresident; Provided, that notice of such service and a copy of the process shall within ten days after the date of service be sent by the plaintiff to the defendant by registered mail at defendant's last-known address, and it shall be the duty of the plaintiff to file with the clerk of the court in which the action is brought an affidavit that he has complied with such requirement. * * *"
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...594, 597 (E.D.Ky.1952), or Fed.R.Civ.P. 6(e). E.g., Ross v. Barrett Centrifugals, 580 F.Supp. 1510, 1512 (D.Me.1984); Youngson v. Lusk, 96 F.Supp. 285, 289 (D.Neb.1951).3 As a corollary proposition, it is established beyond peradventure that, by virtue of a fair reading of 28 U.S.C. § 1446(......
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