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Foster v. Mutual Fire

filed: February 19, 1993.

CONSTANCE B. FOSTER, INSURANCE COMMISSIONER OF THE COMMONWEALTH OF PENNSYLVANIA, AS REHABILITATOR OF THE MUTUAL FIRE, MARINE & INLAND INSURANCE COMPANY
v.
THE MUTUAL FIRE, MARINE & INLAND INSURANCE COMPANY HARRIS TRUST AND SAVINGS BANK, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil Action No. 91-0995

Before: Scirica, Roth and Higginbotham, Circuit Judges.

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Under 28 U.S.C. § 1441, a state court civil action over which a federal district court has original jurisdiction is normally removable to the appropriate federal district court in that state. Under 28 U.S.C. § 1446(b), a defendant has thirty days from the time the defendant receives the initial pleadings notifying it of federal jurisdiction to file a Notice of Removal in the district court.*fn1 On this appeal, we are asked to consider what constitutes sufficient notice to trigger the running of the thirty-day period.

The issue of timeliness was raised before the district court by the appellee in response to appellant's Notice of Removal. The district court declined to decide the issue of timeliness, but instead ordered that the case be remanded to state court pursuant to the doctrines of abstention and comity. Appellant now challenges the decision of the district court, and appellee once again raises the issue of timeliness of the Notice of Removal.

We hold that when a writ of summons, a praecipe, or of course a complaint provides adequate notice to defendant of federal jurisdiction, the thirty-day period is triggered. Pursuant to that standard we conclude that in this case the Notice of Removal was timely even though it was filed more than a year after the praecipe for the writ of summons. However, while finding the Notice was timely, we affirm the decision of the district court to remand the case to state court, abstaining from the exercise of federal jurisdiction.

I.

Appellant, Harris Trust and Savings Bank (Harris), is an Illinois banking corporation with its principal place of business in Illinois. Mutual Fire, Marine and Inland Insurance Company (Mutual Fire) is an insurance company which is incorporated in Pennsylvania. After Mutual Fire encountered financial difficulties, its activities were restricted by the Pennsylvania Insurance Commissioner under an Order of Supervision. Appellee, Constance Foster (Foster), is the Insurance Commissioner of the Commonwealth of Pennsylvania. Foster was designated the Rehabilitator for Mutual Fire pursuant to an Order of Rehabilitation dated December 8, 1986. The rehabilitation is regulated under 40 Pa. Cons. Stat. Ann. §§ 221.1 - 221.63.

Litigation between Harris and Foster arose out of a dispute over the nature of corporate money market accounts Harris handled for Mutual Fire. Harris was the beneficiary of a surety bond issued by Mutual Fire, and when Mutual Fire defaulted on Harris's demand for payment of the bond, Harris set off the money market accounts in partial satisfaction of its unpaid claim.

Litigation between the parties commenced on August 31, 1988, when Foster caused to be filed in the Commonwealth Court of Pennsylvania a praecipe for writ of summons and obtained issuance of a writ of summons against Harris. On October 27, 1989 the Rehabilitator filed a praecipe to reissue the summons. On January 15, 1991, the complaint was filed, and on January 16, 1991 was served on Harris. On February 14, 1991, based on diversity of citizenship, Harris filed a Notice of Removal pursuant to 28 U.S.C. §§ 1441 and 1446. On March 8, 1991, Foster filed a motion for remand. She asserted that Harris's failure to file a timely Notice of Removal under § 1446(b) and the doctrines of abstention required an order to remand the case to state court.

On December 30, 1991, the district court for the Eastern District of Pennsylvania remanded the action to the Commonwealth Court. It found that abstention of federal court jurisdiction was warranted under the principles of abstention as set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976), and Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943), as well as principles of comity. After concluding that it lacked jurisdiction under the abstention doctrines, the district court did not address the timeliness issue. Harris appeals the district court's order, and Foster, in her reply brief, in addition to defending the district court's abstention, reiterates her claim that Harris's Notice of Removal was not timely. She asserts:

Harris Bank did not attempt to remove this action to federal court until more than two years after its receipt of the summons which commenced this action and gave Harris Bank notice of the basis for removal. This Court should affirm the district court's decision to remand the case because Harris Bank did not file its Notice of Removal within the 30-day time limit prescribed by 28 U.S.C. § 1446(b).

The United States Supreme Court and this circuit have determined which types of orders to remand are reviewable by appellate courts. Orders to remand based on defects in removal procedure, see 28 U.S.C. § 1447(c), are not reviewable pursuant to 28 U.S.C. § 1447(d).*fn2 However, § 1447(d) is not dispositive as to remand orders not based on § 1447(c). See Thermtron Products Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S. Ct. 584, 589, 46 L. Ed. 2d 542 (1976) (§ 1447(d) bars review of remand orders issued pursuant to § 1447(c)); Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1210 (3d Cir. 1991), cert. denied Chesapeake Ins. Co. v. Foster, 116 L. Ed. 2d 245, 112 S. Ct. 302; Black & Decker (U.S.) Inc. v. Brown, 817 F.2d 13, 14 (3d Cir. 1987). Thus, orders of remand based on failure to file a timely Notice of ...


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