Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BRODERICK v. DELLASANDRO

July 25, 1994

SEAN and YVONNE BRODERICK
v.
GENE DELLASANDRO



The opinion of the court was delivered by: HARVEY BARTLE, III

 Bartle, J.

 We face a motion to remand this diversity action to the Court of Common Pleas of Philadelphia County. Plaintiffs contend that the defendant failed to remove the case to this court within the thirty day time limit provided in 28 U.S.C. § 1446(b). Our decision depends on what Congress meant by the words "other paper" in the procedure it has established for removal.

 This action arises out of an automobile accident which occurred on July 23, 1992 in Philadelphia. At the time of the accident, all parties were residents of the State of New Jersey. In November, 1993, plaintiffs moved to Pennsylvania. The state court complaint, prepared prior to plaintiffs' move, but not filed and served until December, 1993, alleged that plaintiffs and defendant all resided in New Jersey.

 After plaintiffs' move to Pennsylvania, a telephone conversation between plaintiffs' counsel and defendant's counsel's office took place, in which the issue of plaintiffs' residency arose. Thereafter, defendant's counsel mailed to plaintiffs' counsel a letter which requested, "Kindly advise us of [plaintiffs' new] address as soon as possible." Plaintiffs' attorney responded by a letter dated April 13, 1994. He wrote, "The plaintiffs have been residents of Philadelphia, PA, since the end of November 1993." Defendant's counsel concedes he received this correspondence.

 More than a month later, on May 16, 1994, defendant's counsel received plaintiffs' answers to interrogatories, in which plaintiffs identified their address as 2531 S. Reese Street, Philadelphia, Pennsylvania. It was not until June 7, 1994 that defendant filed a Notice of Removal to the United States District Court for the Eastern District of Pennsylvania. *fn1"

 
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. (emphasis added)

 The complaint, as initially filed, did not allege diversity of citizenship. All parties were identified as residents of New Jersey. The question before us is at what later point defendant's counsel received an "other paper" indicating diversity - when he received the April 13, 1994 letter or when he received the answers to interrogatories on May 16, 1994. If the former, the case must be remanded as beyond the thirty day removal period. If the latter, the removal was timely.

 Plaintiffs argue, not surprisingly, that the time began to run when defense counsel received plaintiffs' counsel's April 13 letter. In that letter, plaintiffs' counsel responded to defense counsel's specific, written inquiry regarding plaintiffs' residency. *fn2" Plaintiffs claim that the April 13 letter constituted an "other paper" within the language of 28 U.S.C. § 1446(b). In contrast, defendant contends that the letter from plaintiffs' counsel did not satisfy the statutory "other paper" requirement. According to the defendant, the "mere correspondence" of an attorney is not sufficient notice under the removal statute. See Bonnell v. Seaboard Air Line R.R., 202 F. Supp. 53, 55 (N.D. Fla. 1962). See also Sfirakis v. Allstate Insurance Company, 1991 U.S. Dist. LEXIS 10374, Civ.A.No. 91-3092, 1991 WL 147482 (E.D. Pa., July 24, 1991). Instead, defendant argues that notice must be given by a more formal document which is an integral part of the state court proceeding. In this case, under defendant's analysis, only plaintiffs' formal answers to defendant's interrogatories would constitute the "other paper" that started the clock ticking.

 28 U.S.C. § 1446(b) does not define "other paper." We have found no relevant legislative history. The statute, however, is clear that the time for removal begins to run when the defendant receives the requisite written notice of facts which make the case removable. The statutory requirement of a writing reduces disputes over knowledge of diversity or the amount in controversy and helps avoid later battles of credibility between opposing parties and lawyers. See Smith v. Bally's Holiday, 843 F. Supp. 1451 (N.D. Ga. 1994). Although notice must be in writing, the statute does not require "service" of that notice in some formal, legal sense. Notification may be "through service or otherwise." 28 U.S.C. § 1446(b) (emphasis added). Thus, while Congress insisted that the notice of facts permitting removal must be in an "amended pleading, motion, order or other paper," the method of delivery or receipt of the writing was not circumscribed. See 28 U.S.C. § 1446(b). In sum, the purpose of the statute "is to commence the running of the thirty day period once the defendant receives actual notice that the case has become removable, which may be communicated in a formal or informal manner." 14A Wright, Miller & Cooper, Federal Practice & Procedure, § 3732, at 520 (emphasis added). See also 28 U.S.C. § 1446, Commentary on 1988 Revision of § 1446.

 Courts have found that answers to interrogatories in discovery proceedings satisfy the "other paper" requirement and give defendants sufficient notice to file a notice of removal. See Hessler v. Armstrong World Industries, Inc., 684 F. Supp. 393 (D.Del. 1988) (citing Lee v. Altamil Corp., 457 F. Supp. 979 (M.D. Fla. 1978)). Some courts have even gone so far as to state that oral statements in deposition testimony, apparently even before the deposition was transcribed, may trigger the running of the thirty day removal period. See, e.g., Fuqua v. Gulf, Colo. & S. Ry., 206 F. Supp. 814, 815 (E.D. Okla. 1962). Cf. Smith, 843 F. Supp. at 1454-55.

 Similarly, in Hessler, District Judge Jane Roth - now Circuit Court Judge Roth - adjudged attorneys' correspondence as a permissible "other paper" under the removal statute. In that case, the parties were notified via letter from counsel that the non-diverse parties to the suit had settled. The remaining defendants, however, did not file a petition to remove until more than three months later. They argued that the thirty day time limit had not begun to run until the court had formally received notice that the non-diverse defendants had settled. The Hessler court found that defendants' petition for removal was untimely. Hessler, 684 F. Supp. at 395. The court reasoned that because the earlier correspondence among the attorneys had given the defendants ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.