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SPRAGUE v. AMERICAN BAR ASS'N

April 3, 2001

RICHARD A. SPRAGUE, PLAINTIFF,
V.
AMERICAN BAR ASSOCIATION, ABA JOURNAL AND TERRY P. CARTER, DEFENDANTS.



The opinion of the court was delivered by: Yohn, District Judge.

MEMORANDUM AND ORDER

On October 2, 2000, Richard Sprague ["plaintiff"] initiated this libel action against the American Bar Association ["ABA"], the ABA Journal, and Terry P. Carter ["defendants"] in the Court of Common Pleas, Philadelphia County, Pennsylvania. Defendant Carter was served with a copy of the writ of summons and a civil cover sheet on October 6, 2000. The remaining two defendants were served with a copy of the writ of summons and a civil cover sheet on October 12, 2000. The writ of summons identified the names and addresses of both plaintiff and defendants. The civil cover sheet indicated that the case type was "libel/slander" and that the amount in controversy was more than $50,000. On January 11, 2001, plaintiff filed the instant complaint. The date defendants were served with that complaint is not evident from the record. Nonetheless, it is evident that on January 24, 2001, thirteen days after the filing of plaintiff's complaint, defendants removed plaintiff's action to this court. On February 12, 2001, plaintiff moved for remand alleging that defendants' removal was untimely because it was filed more than thirty days after defendants received adequate notice of federal jurisdiction. Because I find that defendants' removal was timely, plaintiff's motion to remand will be denied.

DISCUSSION

As to timeliness, the procedure for removal is outlined in 28 U.S.C. § 1446(b). That statute provides in pertinent part:

The notice 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).

Plaintiffs sole contention is procedural — that defendants' removal was improper because defendants were served with the writ of summons in October 2000, three months before defendants removed the action to federal court. Defendants counter that the Supreme Court's recent decision in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999), requires the court to hold that a writ of summons cannot trigger the running of the thirty-day time period for removal. Alternatively, defendants argue that because the writ of summons did not provide sufficient notice of federal diversity jurisdiction, the removal period did not begin to run until service of the complaint.

In Murphy Brothers, the Supreme Court addressed "a closely-related, yet different question:

whether the named defendant must be officially summoned to appear in the action before the time to remove begins to run. Or, may the 30-day period start earlier, on the named defendant's receipt, before service of process of a `courtesy copy' of the filed complaint faxed by counsel for the plaintiff?"

Davidson v. Nat'l R.R. Passenger Corp., No. Civ. A. 00-1226, 2000 WL 795881, at *2 n. 2 (E.D.Pa. June 9, 2000) (citing Murphy Brothers, 526 U.S. at 347, 119 S.Ct. 1322). The Court held that the thirty-day removal period does not commence by "mere receipt of the complaint unattended by any formal service." Murphy Brothers, 526 U.S. at 348, 119 S.Ct. 1322.

Defendants argue that this holding requires the court to find that their removal period did not begin to run until formal service of the complaint. I conclude, however, that defendants read the Supreme Court's holding too expansively. First, the issue in Murphy Brothers concerned whether receipt of a "courtesy copy" of a complaint, as opposed to official service, sufficed to commence the removal period. The Court held that official service was required. In the instant case, defendants did receive formal service of the writ of summons. Moreover, Murphy Brothers concerned Alabama civil procedure which does not allow for a writ of summons to commence an action, as does Pennsylvania procedure. Accordingly, the portion of the Supreme Court's holding applicable to this case is that official service of the initial pleading is required to trigger the thirty-day period. Because not faced with the question, the Court did not hold that the "initial pleading" necessarily must be the complaint. Therefore, the law of this circuit in place before Murphy Brothers will serve to guide the instant inquiry. See, e.g., Davidson, 2000 WL 795881, at *2 n. 2 (distinguishing Murphy Brothers); Steff v. Township of Salisbury, No. Civ. A. 992931, 1999 WL 761134, *1 (E.D.Pa. Sept. 21, 1999) (finding that Murphy Brothers did not overrule Third Circuit precedent concerning when removal period begins); but see Whitaker v. Fresno Telsat Inc., No. 99 Civ. 6059(SAS), 1999 WL 767432, at *1-2 (S.D.N.Y. Sept. 28, 1999) (holding that Murphy Brothers requires that removal period is triggered only by proper service of complaint and not by service of Summons with Notice); Quinones v. Minority Bus Line Corp., No. 98-Civ. 7167(WHP), 1999 WL 225540, at *2 (S.D.N.Y. April 19, 1999) (same).

The Third Circuit has addressed the issue of when the thirty-day period provided for by § 1446(b) begins. See Foster v. Mutual Fire, Marine & Inland Ins. Co., 986 F.2d 48, 54 (3d Cir. 1993). In Foster, the plaintiff argued that "correspondence accompanying the summons should, together with the summons, constitute sufficient notice of [federal] jurisdiction as to trigger the thirty-day limit." Id. at 53. The correspondence at issue constituted correspondence between counsel that had been served on the defendant along with the summons. See id. at 53.

The Third Circuit first concluded that "the relevant test is not what the defendant purportedly knew, but what the[] documents said." Id. at 54. The Foster court then adopted the rationale of the district court in Rowe v. Marder, 750 F. Supp. 718, 721 n. 1 (W.D.Pa. 1990), aff'd, 935 F.2d 1282 (3d Cir. 1991), which concluded that "at a minimum, anything considered a pleading must be something of the type filed with a court." Foster, 986 F.2d at 54. Finally, the Third Circuit held as follows: "§ 1446(b) requires defendants to file their Notices of Removal within thirty days after receiving a writ of summons, praecipe, or complaint which in themselves provide adequate notice of federal jurisdiction[.]" Id. at 54.


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