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June 24, 1996

RONALD M. WEIMER, Plaintiff,

The opinion of the court was delivered by: MUNSON

 Now comes plaintiff Ronald Weimer with a motion to remand back to state court a case previously removed by defendants. In deciding this motion, the court is confronted with several issues relating to the thirty-day time limit for removal set forth in 28 U.S.C. § 1446(b). The parties presented oral argument at this court's regular motion day in Albany on April 29, 1996. What follows constitutes the court's memorandum-decision and order in this matter.


 This case arises out of incidents surrounding the arrest and detention of plaintiff Ronald M. Weimer by defendant Steven William Lake in March of 1994. Compl. att'd to Defs.' Notice of Removal, Doc. 1, P 5. At that time Lake was employed as a police officer by defendant City of Johnstown ("City"). Id. P 3. Plaintiff commenced this action in the New York State Supreme Court, County of Fulton, on January 22, 1996, alleging violations of 42 U.S.C. § 1983 and various state law claims. Notice of Removal, Doc. 1, P 1. Service on defendant City was accomplished on that date by a summons with notice pursuant to N.Y. Civ. Prac. L. & R. 305(b) (McKinney 1990). *fn1" Decl. att'd to Pl.'s Notice of Mot., Doc. 2, P 3. On February 22 (31 days after City's receipt of the summons with notice), plaintiff received defendants' notice of removal. Id. P 7. The notice of removal was not filed with the clerk of the court until February 28 (37 days later). Id.

 Defendant Lake affirms that he did not actually receive the summons with notice until February 1, 1996, when a copy arrived in the mail from the clerk for defendant City. Aff., Doc. 7, P 2. Defendants assert, and plaintiff conceded at oral argument, that Officer Lake in fact has not been properly served yet in this action. Id.; Defs.' Mem. Law, Doc. 6, at 2.

 Plaintiff brings the instant motion seeking (1) remand of the action back to Fulton Supreme Court, and (2) pursuant to 28 U.S.C. § 1447(c), an award of just costs, actual expenses, and attorney's fees incurred as a result of the allegedly improvident motion to remove. Plaintiff argues primarily that defendants did not comply with the thirty-day time limit for removal petitions mandated by 28 U.S.C. § 1446(b). That straightforward contention involves several issues, discussed below.


 The federal removal statute provides in relevant part that

(b) The notice of 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 . . . .

 28 U.S.C. § 1446(b).

 The parties do not dispute the dates defendant City received the summons with notice, the date plaintiff received the notice of removal, or the date the notice was filed with the clerk of the court. See Defs.' Mem. Law, Doc. 6, at 1. As noted above, neither plaintiff's receipt of the removal notice nor the filing of the notice with this court occurred within thirty days of defendant City's receipt of the summons with notice.

 In support of their position that removal is nonetheless timely, defendants proffer two arguments: (1) the summons with notice is not an "initial pleading" as defined by the removal statute, thus the thirty-day clock did not start to run when City received it, id. at 2-4; and (2) removal is still timely with respect to defendant Lake, either because he has not been served, or alternatively, because the removal notice was received by plaintiff and filed within thirty days of Lake's actual receipt of the summons with notice on February 1, id. at 1-2. Analysis of these arguments follows.

 A. What is an Initial Pleading?

 Defendants maintain that a summons with notice does not constitute an "initial pleading setting forth the claim for relief upon which action or proceeding is based" within the meaning of the removal procedure statute, 28 U.S.C. § 1446(b). Id. at 2-4. They instead argue that it is the service of the complaint which starts the thirty-day stopwatch.

 The court recognizes that federal districts in New York State are, at least superficially, split over the issue of whether the summons with notice under New York practice is an "initial pleading" for purposes of the removal statute. Compare, e.g., Figueroa v. Kim, 813 F. Supp. 267, 268 (S.D.N.Y. 1993) (summons with notice sufficient) with E.W. Howell Co., Inc. v. Underwriters Labs., Inc., 596 F. Supp. 1517, 1519 (E.D.N.Y. 1984) (insufficient). There is even contrary authority within the Western District of New York. Compare Jones Chems., Inc. v. Distribution Architects Int'l, Inc., 786 F. Supp. 310, 316 (W.D.N.Y. 1992) (sufficient) and Village of Wellsville v. Atlantic Richfield Co., 608 F. Supp. 497, 499 (W.D.N.Y. 1985) (sufficient) with Manufacturers & Traders Trust Co. v. Hartford Accident & Indem. Co., 434 F. Supp. 1053, 1054 (W.D.N.Y. 1977) (insufficient). See generally Robert F. Koets, Annotation, What Constitutes Initial Pleading for Purposes of Computing Time for Removal of Civil Action from State to Federal Court Under 28 USCS § 1446(b)?, 130 A.L.R. Fed. 581, § 6 at 598-601 (1996).

 Fortunately there is a persuasive authority in the Northern District on point. Judge McCurn analyzed the issue in 1986, and held that the summons with notice served in the case before him was enough to activate the running of the prescribed time period. Day v. Zimmer Inc., 636 F. Supp. 451 (N.D.N.Y. 1986). Rather than adopting a bright-line rule, Judge McCurn sensibly advocated an approach whereby the actual notice-value of the pleading is examined. The defendant must be able to "intelligently ascertain removability" from the face of the document. Id. at 453. This standard

is a flexible one in that if the "Summons with Notice" does not adequately apprise the defendant of the necessary facts to determine removal, the defendant's time to remove would not be triggered by service of that pleading.


 Judge McCurn went on to hold that a summons with notice which briefly described the nature of the claim, set forth a demand in excess of the required amount in controversy, and indicated that the plaintiff haled from a different state, adequately informed the defendant of the existence of diversity jurisdiction, and hence the suit's removability to federal court. Id. This fact-dependent determination may in fact be the prevailing method, which would harmonize the apparent inconsistency of the precedents. For instance, Judge Curtin authored both the Village of Wellsville and Manufacturers & Traders Trust opinions which reached opposite results on the question, suggesting a flexible case-by-case approach was being used. Compare 608 F. Supp. at 499 with 434 F. Supp. at 1054. Judge Skretny in Jones Chemicals similarly observed that Manufacturers was "fact specific," 786 F. Supp. at 313 n.2, and noted that the two reported decisions purporting to ...

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