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VILLAGE OF WELLSVILLE v. ATLANTIC RICHFIELD CO.

May 8, 1985

VILLAGE OF WELLSVILLE, Plaintiff,
v.
ATLANTIC RICHFIELD COMPANY, a/k/a ARCO, Defendant.



The opinion of the court was delivered by: CURTIN

Plaintiff originally initiated this action in the Supreme Court of the State of New York, Allegany County. Defendant removed the suit to this court on the basis of the court's diversity jurisdiction. Plaintiff seeks a remand to state court, challenging not the jurisdictional basis, but claiming that the petition for removal was prematurely filed.

Defendant filed its petition for removal on November 20, 1984, approximately 26 days after it was served with a summons and notice. No complaint had been served, nor had one been served at the time of submission of this motion for decision.

 Plaintiff cites 28 U.S.C. § 1446(b), which provides that a

 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 . . . is based. . . .

 (Emphasis added.)

 Plaintiff relies on this court's decision in Manufacturers and Traders Trust v. Hartford Accident and Indemnity Co., 434 F. Supp. 1053 (W.D.N.Y. 1977). In that case, defendant filed its petition to remove within 30 days after the complaint was served, but more than 30 days after the summons and notice were received. Plaintiff claimed that the petition was filed too late, since the summons and notice constituted an "initial pleading." This court rejected plaintiff's argument, saying:

 . . . I find that the summons with notice in this case provided insufficient information to qualify as an initial pleading under the statute. By filing its petition for removal within thirty days of service of the complaint, defendant has complied with the requirement of § 1446(b).

 Id. at 1055.

 In 1980, Judge Knapp of the Southern District of New York was faced with the same question -- whether a petition for removal filed within 30 days of the complaint but more than 30 days after the service of summons with notice was timely. Judge Knapp, however, found that the summons with notice constituted an "initial pleading" and granted the plaintiff's motion for a remand. DiMeglio v. Italia Crociere Internazionale, 502 F. Supp. 316 (S.D.N.Y. 1980).

 Shortly after this court's decision in Manufacturers and before Judge Knapp's decision, Section 305(b) of New York's Civil Practice Law and Rules was amended. Before the amendment, the service a notice describing the case with the summons was optional. The amended section 305(b), which became effective January 1, 1979, requires that summons served without complaints "shall contain or have attached thereto a notice stating the nature of the action and the relief sought." (Emphasis added.)

 Based on this amendment, Judge Knapp found that a summons will now provide plaintiff with as much information bearing on removability as does a complaint. DiMeglio, at 318.

 Both these cases were recently reviewed by Judge Glasser of the Eastern District of New York. Judge Glasser was confronted with a factually similar situation and chose to follow this court's decision in Manufacturers, holding that the complaint was the initial pleading for the purposes of section 1446(b). E.W. Howell Co., Inc. v. Underwriters Laboratories, 596 F. Supp. 1517 (E.D.N.Y. 1984).

 In New York, the notice accompanying a summons is not recognized as a pleading. CPLR § 3011. Before the amendment to CPLR § 305(b), the notice had no legal effect except in cases of default. Everitt v. Everitt, 4 N.Y.2d 13, 171 N.Y.S.2d 836, 148 N.E.2d 891 (1958). And, as plaintiff points out, the legislative history accompanying the amendment reveals that it was primarily intended to enable plaintiffs to take a default judgment. The notice, however, now has an additional legal effect -- a summons served with neither notice nor complaint is jurisdictionally defective. Parker v. Mack, 61 N.Y.2d 114, 472 N.Y.S.2d 882, 460 N.E.2d 1316 (1984).

 State law, however, is not alone determinative of whether a document qualifies as an initial pleading for the ...


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