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CASSARA v. RALSTON

October 6, 1993

CALOGERO CASSARA and ANNA CASSARA, Plaintiffs,
v.
LOIS SUZANNE RALSTON and GIANNINI TRUCKING CO., INC., Defendants.


SOTOMAYOR


The opinion of the court was delivered by: SONIA SOTOMAYOR

SONIA SOTOMAYOR, U.S.D.J.

 This motion, brought sua sponte by this Court by Order to Show Cause, raises two questions: first, whether the removal in this action was timely; and second, whether an action can or should be remanded to state court solely because the Notice of Removal fails to state or otherwise establish that the removal is timely under 28 U.S.C. § 1446(b). At a hearing held on the Order, defendants demonstrated that the removal was timely. For the reasons stated below, the action shall not be remanded for the shortcomings in the removal papers.

 I. Background

 By Notice of Removal dated July 19, 1993, defendants removed this action from the Supreme Court of the State of New York, County of Bronx, to this Court. Nowhere in the Notice of Removal did the defendants state that removal was timely under 28 U.S.C. § 1446(b). Nor did removing defendants indicate when they received the complaint pursuant to Section 1446(b). The defendants did attach a copy of the Summons and Verified Complaint, both dated June 15, 1993, to the Notice of Removal.

 On August 17, 1993, I issued an Order directing counsel to appear before me on August 31, 1993, and to show cause why the action should not be remanded to the Supreme Court of the State of New York, County of Bronx, with costs and attorney fees assessed against removing defendants, pursuant to 28 U.S.C. § 1447(c). At the hearing and oral argument held on this question, defendants demonstrated that removal was timely.

 II. Discussion

 The issue before me is whether the failure of removal papers to state or otherwise establish the timeliness of a removal may result in the sua sponte remand of the action to state court. I address this question in two parts: first, whether a court may sua sponte order remand based on a defect in the removal procedure, and second, whether the flaws in the removal papers constitute defects in the removal procedure warranting remand.

 
May a Court Remand Sua Sponte for Procedural Defects in Removal?

 Remand based not on the absence of subject matter jurisdiction, but rather on a defect in removal procedure -- such as untimeliness of removal -- must be effected "within 30 days after the filing of the notice of removal under section 1446(a)." 28 U.S.C. § 1447(c). This time limitation applies to sua sponte actions of the court, and not just to motions brought on by parties. See, e.g., Maniar v. Federal Deposit Ins. Corp., 979 F.2d 782 (9th Cir. 1992); Federal Deposit Ins. Corp. v. Loyd, 955 F.2d 316, 321 (5th Cir. 1992); Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3rd Cir. 1989). Although none of these cases addresses whether or not Section 1447(c) authorizes a district court to remand a case sua sponte for procedural defects, and no authority on point has been found on this question, I believe that such remands are permitted.

 First, sua sponte actions are contemplated by the term "motion"; Black's Law Dictionary defines "sua sponte" as "of his or its own will or motion." See also Loyd, 955 F.2d at 321 ("The various provisions of the [federal procedure rules] all refer, in various circumstances, to actions undertaken by the court as 'motions.'") Indeed, Fed. R. Civ. P. 56, for example, refers only to motions for summary judgment, yet "district courts are widely acknowledged to possess the power to enter summary judgments sua sponte." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986)(Rehnquist, J.).

 Second, sua sponte remands for procedural defects are consistent with the purpose behind the 1988 amendment to Section 1447(c). The time limitation on remands for procedural defects was implemented because "Congress concluded that procedural defects in removal should not be grounds for shuffling cases between state and federal courts after the first thirty days." Loyd, 955 F.2d at 322. Expeditious remand would "minimize the burdens on all parties and the courts involved." Id. Sua sponte remands within the time period specified by Section 1447(c) do not disturb this policy.

 Thus, sua sponte remand for procedural defects is contemplated by the removal statute and is consonant with the ...


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