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GREEN v. ZUCK

August 3, 1955

Fritzie GREEN, Plaintiff,
v.
Fred ZUCK, Defendant



The opinion of the court was delivered by: DAWSON

This is a motion to remand the action to the Supreme Court of New York whence it was removed on the defendant's petition, pursuant to 28 U.S.C. § 1446. Plaintiff seeks to remand the action on the ground that the petition for removal was not filed within twenty days after the receipt by the defendant of a copy of the initial pleading setting forth the claim for relief, 28 U.S.C. § 1446(b). The defendant urges that the plaintiff is now estopped to bring on this motion to remand due to lapse of time and the steps which he has taken in this Court since the action has been in this Court.

Plaintiff is a citizen of New York, and defendant is a citizen of New Jersey. On or about February 5, 1954, plaintiff commenced the action in the Supreme Court of New York, by substituted service, seeking damages for personal injuries. The complaint was served on or about November 20, 1954, and by stipulation, the time of the defendant to move or answer was extended until January 20, 1955. On January 19, 1955, plaintiff filed in this Court a petition and bond for the removal of the action to this Court. Counting the days elapsed, this petition was filed sixty days after the receipt of a copy of the initial pleading.

 Although there has been some divergence of opinion among the text-writers as to whether the requirements of 28 U.S.C. § 1446(b) that a petition for removal 'shall be filed within twenty days' *fn1" after the receipt of a copy of the initial pleading is mandatory, the law seems to be well settled in this District that the requirement is mandatory. *fn2" This means that upon a proper motion by the plaintiff for remand, the Judge has no discretion to deny the motion. Thus, a stipulation of the parties extending the defendant's time to answer or move as to the complaint would not permit an extension of the period of time in which the petition for removal is to be filed. *fn3" However, as will be shown, 'mandatory' is not synonymous with 'jurisdictional'.

 This motion raises the question as to whether that right is one which may be lost or which a party may be estopped to assert by his own inaction or by affirmative action taken by him. The file of this case shows that the following have occurred since the action was removed to this Court:

 February 8, 1955 -- Defendant filed his answer;

 February 9, 1955 -- Plaintiff filed notice of motion to remand for lack of jurisdiction on the ground that defendant was not truly a citizen of a different state; plaintiff did not raise any issue as to the untimely filing of the petition for removal;

 February 25, 1955 -- The motion to remand was denied by Judge Ryan on the ground that defendant's New Jersey citizenship was convincing.

 March 7, 1955 -- Plaintiff filed notice of demand for jury trial.

 April 14, 1955 -- Plaintiff's note of issue was filed.

 May 5, 1955 -- Plaintiff filed notice of motion for a transfer of the action to the Jury Calendar of this Court. On the same day, this motion for transfer was denied by Judge Bondy because of the delay of the plaintiff in demanding trial by jury.

 June 1, 1955 -- Defendant filed a notice for the taking of plaintiff's deposition.

 The plaintiff has alleged that she was not aware of the twenty-day requirement at the time of her motion before Judge Ryan. The defendant suggests that the reason for plaintiff's present belated motion to remand is because plaintiff has now been held to have waived her right to a jury trial in this Court. The present motion to remand was filed on June 29, 1955.

 Title 28 U.S.C. § 1447(c) provides:

 'If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and ...


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