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DIMEGLIO v. ITALIA CROCIERE INTERNAZIONALE

November 18, 1980

Louis DiMEGLIO, Plaintiff,
v.
ITALIA CROCIERE INTERNAZIONALE, Italian Line Cruises International and "Marconi", Defendants



The opinion of the court was delivered by: KNAPP

MEMORANDUM AND ORDER

On December 5 or 7, 1979 plaintiff served upon defendant, a corporation organized under the laws of Italy, a summons bearing the following notice:

 
"Notice: The object of this action is personal injuries sustained by plaintiff on December 27, 1978 on board defendant's steamship MARCONI, as a result of defendant's negligence and unseaworthiness of its ship under the Maritime law. The relief sought is $ 1,000,000.00."

 Subsequently plaintiff served a complaint-said to have been received by defendant on December 24, 1979-which fleshed out the claim alleged in the above-quoted notice, but in no way altered its essential contours. In particular, the complaint said nothing about plaintiff's citizenship. Counsel for defendant claims to have ascertained through telephonic inquiry of plaintiff's counsel on or about January 7, 1980 that plaintiff was a citizen of the United States and a resident of New York. Defendant received no written confirmation of this fact until some months later, when plaintiff answered its interrogatories. On January 23, 1980 defendant filed a petition for removal alleging that this court had original jurisdiction under 28 U.S.C. § 1333 (diversity of citizenship) and that removal was proper under 28 U.S.C. § 1441. Plaintiff moves to remand on the ground that the petition for removal was not timely filed in accordance with the provisions of 28 U.S.C. § 1446(b). We grant that motion.

 At the outset, we note that defendant will not lose any substantive rights as a result of our decision. On remand to the New York courts, defendant will be able fully to present its defense on the merits. It is because of this availability of complete relief in the state courts that diversity removal jurisdiction has always been strictly construed. In Shamrock Oil & Gas Corp. v. Sheets (1941) 313 U.S. 100, 108-109, 61 S. Ct. 868, 872, 85 L. Ed. 1214, quoting Healy v. Ratta (1934) 292 U.S. 263, 270, 54 S. Ct. 700, 703, 78 L. Ed. 1248, the court observed:

 
"The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution. "Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.' "

 See also Perrin v. Walker (E.D.Ill.1974) 385 F. Supp. 945, 947; Maybruck v. Haim (S.D.N.Y.1968) 290 F. Supp. 721, 724.

 Time limits for removal are set forth in 28 U.S.C. § 1446(b), which provides:

 
"(b) The petition for 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 petition for removal may be filed within thirty days after 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."

 The 30-day period contained in § 1446(b) is mandatory. The court has no power to extend a defendant's time to remove unless the plaintiff, by action amounting to a waiver, loses its right to object to a late filing. Maybruck, supra, at 723; Green v. Zuck (S.D.N.Y.1955) 133 F. Supp. 436, 437. Here, plaintiff promptly moved to remand and has in no way waived its rights. *fn1"

 Defendant concedes that its petition to remove was not filed until more than thirty days after receipt of the summons and notice. It makes two contentions in opposition to the motion to remand: that the summons and notice served in early December was not a "pleading" within the meaning of § 1446(b); and failing this, that the "case stated" by the summons and notice was not removable. We reject both arguments.

 Defendant correctly cites cases holding that a summons, even when accompanied by a notice, is not a "pleading" for purposes of the federal removal statute. Mfrs. & Traders Trust Co. v. Hartford Acc. (S.D.N.Y.1977) 434 F. Supp. 1053, 1054-55; Milton A. Jacobs, Inc. v. Manning Manufacturing Corp. (S.D.N.Y.1959) 171 F. Supp. 393, 395; Markantonatos v. Maryland Drydock Co. (S.D.N.Y.1953) 110 F. Supp. 862, 864. These cases, however, predate a 1978 revision of New York's Civil Practice Law and Rules ("CPLR") effective January 1, 1979, which requires that a summons served without a complaint "shall contain or have attached thereto a notice stating the nature of the action and the relief sought." Act of July 24, 1978, ch. 528, 1978 N.Y.Laws 936 (McKinney's) (codified at CPLR 305(b)). In recommending this change to the legislature, the Judicial Conference stated:

 
"Under the proposed amendment the uncertainty now surrounding default practice under CPLR 305(b) and 3215(c), (e) would be avoided by the mandatory notice provision. That provision would be in harmony with modern notions of notice pleading. It would assure the defendant at least basic information concerning the nature of the plaintiff's claim and the relief sought." Judicial ...

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