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DAY v. ZIMMER INC.

June 16, 1986

AGNES F. DAY, Plaintiff, v ZIMMER INC., SUCCESSOR TO ZIMMER, U.S.A., Defendant


The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

NEAL P. McCURN, D.J.

On August 9, 1985, this action was commenced pursuant to New York Business Corporation Law § 306 (McKinney Supp. 1986). The defendant corporation was served, by service of a "Summons with Notice," upon the Secretary of State. No complaint was served at that time, however. On approximately August 28, 1985, defendant served upon plaintiff's attorney a Notice of Appearance and Retainer. On September 12, 1985, the corporate defendant was once again served with a "Summons with Notice" by personal service upon defendant's Vice-President/Corporate Counsel. No complaint accompanied that summons either. The "Summons with Notice" did state, however, that plaintiff resided in New York; that defendant's address was in Indiana; and that the relief sought was $250,000.00. Finally, plaintiff served defendant with a complaint on January 29, 1986.

 On February 28, 1986, within thirty days of being served with the complaint, but not within thirty days of service of the "Summons with Notice," defendant filed a petition of removal to this court pursuant to 28 U.S.C. § 1446(b)(1973). Plaintiff now seeks to remand this action to State Supreme Court.

 DISCUSSION

 Section 1446(b) provides:

 
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.

 28 U.S.C. § 1446(b) (1973). The issue presented by this motion is whenever a "Summons with Notice" constitutes an "initial pleading" within the meaning of the statute.

 Plaintiff simply asserts, without citing any authority, that defendant's petition for removal was untimely because it was filed more than thirty days after service of the "Summons with Notice." Plaintiff contends the removal petition was untimely even if the time is calculated from the date of service of the second "Summons with Notice," on September 12, 1985.

 Defendant cites two district court cases where the court held that it is the complaint, and not the "Summons with Notice," which constitutes an initial pleading within the meaning of the statute. In Manufacturers and Traders Trust v. Hartford Accident and Indemnity Co., 434 F. Supp. 1053 (W.D.N.Y. 1977), a case nearly identical to the present one, the court reasoned that (1) the "Summons with Notice" is not a "pleading" as defined in N.Y. Civ. Prac. Law § 3011; (2) the "Notice" has no legal effect except in cases of default; and (3) the federal courts have "uniformly held that a summons or similar writ is not an 'initial pleading' within the meaning of § 1446(b)." Id. at 1054-55.

 Relying upon Manufacturers, the court in E.W. Howell Co. v. Underwriters Laboratories, 596 F. Supp. 1517 (E.D.N.Y. 1984), reached the same result. In reaching its decision, the Howell court also relied upon the legislative history of 28 U.S.C. § 1446. Specifically:

 
The House Report accompanying the 1949 amendment stated that the old [pre 1949] statute has been found to create difficulty in those States, such as New York, where suit is commenced by the service of a summons and the plaintiff's initial pleading is not required to be served or filed until later.
 
The first paragraph of the amendment to subsection(b) corrects this situation by providing that the petition for removal need not be filed until 20 days after the defendant has received a copy of the plaintiff's initial pleading.

 Howell, 596 F. Supp. at 1519 (citing HR Rep. No. 352, 81st Cong., 2d Sess., reprinted in 1949 U.S. Code Cong. & Admin. News, 1248, 1254, 1268.) Based upon that, the Howell court concluded "§ 1446(b) was intended to treat the service of a complaint, not the service of a summons without complaint, as the "initial pleading" for making the time period for removal." Id. The Howell court did note, however, that the "clear implication" of § 1446(b) is that an "initial pleading" is a "document from the face of which a defendant can intelligently ascertain removability." Id. at 1520, citing Ardison v. Villa, 248 F.2d 226, 227 (10th Cir. ...


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