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E.W. HOWELL CO. v. UNDERWRITERS LABS.

November 8, 1984

E.W. HOWELL CO., INC., Plaintiff, against UNDERWRITERS LABORATORIES, INC., Defendant.


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 Plaintiff originally commenced this contract action in New York State Supreme Court, Suffolk County. On May 16, 1984, defendant petitioned to remove the action to this Court on the basis of diversity. Plaintiff now moves to remand this action to state court on the grounds that defendant's petition for removal was untimely. Plaintiff's motion to remand is hereby denied.

 Background

 Plaintiff commenced this action on March 7, 1984 by serving defendant with a "Summons with Notice," but no complaint, as permitted by the New York Civil Practice Law and Rules. CPLR §§ 304, 305. The summons briefly stated plaintiff's claim. *fn1"

 On or about March 23, 1984, defendant served plaintiff with a notice of appearance and demand for the complaint. On or about April 16, 1984, plaintiff served the complaint on defendant. Defendant filed a petition for removal to this Court on May 16, 1984.

 Subsequent to removal, the parties engaged in a variety of acts concerning this case: (1) they entered into two stipulations extending plaintiff's time to respond to the complaint; (2) defendant served its answer; (3) plaintiff received an extension of time to respond to defendant's answer and counterclaims; (4) plaintiff served a reply to the counterclaims. On August 14, 1984, a status conference was held before this Court at which time plaintiff first indicated that it intended to move to remand this case to state court. Plaintiff was directed to serve any such motion by September 25, 1984. Plaintiff served the present motion by mail on September 26, 1984.

 Discussion

 Plaintiff simply asserts, without citing any authority, that defendant's petition to remove was untimely because it was filed more than thirty days after service of the Summons with Notice. The only cases cited in plaintiff's memorandum stand for the proposition that exceptions to the requirement of the removal statute should be narrowly construed. The removal statute provides that

 [t]he petition for removal . . . shall be filed within thirty days after receipt by defendant . . . of a copy of the initial pleading setting forth the claim for relief upon which such action is based. . . .

 28 U.S.C. § 1446(b) (emphasis added).

 Defendant challenges plaintiff's motion on two grounds. First, defendant contends tht the "initial pleading" in this matter is the Complaint, not the Summons with Notice, and therefore the petition for removal was timely filed within 30 days of service of the complaint. Second, defendant contends that plaintiff, by its actions before this Court, waived an objection to the allegedly untimely petition for removal.

 A. "Initial Pleading"

 There are two cases decided by federal district courts in New York that are factually on "all-fours" with the present case, but reach completely opposite results. *fn2" In Manufacturers and Bankers Trust Co. v. Hartford Ins. and Indemnity Co., 434 F. Supp. 1053 (W.D.N.Y. 1977), plaintiff commenced an action in a New York state court by filing a Summons with Notice that briefly stated the subject matter of the action. Defendant's petition for removal was filed within thirty days after service of the complaint, but more than thirty days after service of the summons. The court held that the complaint was the "initial pleading" for purposes of removal, and that the petition for removal was therefore timely. Id. at 1055. The court reasoned that (1) the "Summons with Notice" is not a "pleading" as defined in CPLR 3011; ...


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