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Cmiech v. Electrolux Home Products

November 2, 2007

DOMICELLA CMIECH AND PETER CMIECH, H/W, PLAINTIFFS,
v.
ELECTROLUX HOME PRODUCTS, INC., ELECTROLUX NEW PRODUCTS OF NORTH AMERICA, INC., ELECTROLUX, LOWE'S HOME CENTERS, INC., AND LOWE'S, DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

In this case, the Plaintiffs seek remand because removal was not effected within thirty (30) days of receipt of the complaint through service or otherwise. See 28 U.S.C. § 1446(b). Because I find removal to have been timely, Plaintiff's motion will be denied.

LEGAL STANDARD

On a motion to remand, the removing party bears the burden of establishing the propriety of removal. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085 (1991). Furthermore, "removal statutes are to be strictly construed against removal and all doubts resolved in favor of remand." Id.

BACKGROUND

Plaintiffs, residents of Pennsylvania, brought this personal injury suit against Defendant Electrolux Home Products, Inc. [hereinafter Elextrolux], a Delaware corporation with a principal place of business in Georgia, and Defendant Lowe's Home Centers, Inc. [hereinafter Lowe's], a North Carolina Corporation with a principal place of business in North Carolina, in the Court of Common Pleas of Luzerne County on June 18, 2007. Plaintiffs' counsel represents that defense counsel agreed to accept service of the complaint and represented to Plaintiffs' counsel that they had authority to accept such service on behalf of both Defendants. (Mem. in Supp. of Pls.' Mot. to Remand, Doc. 4, at 1.) On June 21, 2007, Plaintiffs' counsel sent a copy of the time-stamped complaint to defense counsel via a cover letter, along with a form for an attorney's acceptance of service in accordance with Pennsylvania Rule of Civil Procedure 402(b). (See Ex. B to Doc. 3.) On June 29, 2007, the Sheriff's Department served the complaint on Defendant Lowe's Home Centers. (See Ex. F to Doc. 3-3.) Defendants admit that service on Lowe's on June 29, 2007 was effective. (See Mem. in Supp. of Response of Defs. in Opp'n to Pls.' Mot. to Remand, Doc. 8, at 2.) Although defense counsel represent that they had no authority to accept service for the Electrolux defendants, they acted as though service had been made. Indeed, by letter dated July 18, 2007, defense counsel confirmed a July 17, 2007 conversation with Plaintiffs' counsel, wherein defense counsel secured an understanding to extend, until August 10, 2007, the time for Electrolux and Lowe's to file and answer to the complaint. (See Ex. D to Doc. 3-3.) A further extension was sought on August 9, 2007, because general counsel of Electrolux was out on vacation until August 17, 2007. (See Ex. E to Doc. 3-3.) Both Defendants filed notice of removal on August 14, 2007. (See Doc. 1.)

Additionally, before the present case began, the Defendants were involved in a related subrogation action filed by Allstate Insurance Company, and counsel in this case, who represent all Defendants, also represent all Defendants in the Allstate litigation. (Pls.' Mot. to Remand, Doc. 3 ¶¶ 3-4; Response of Defs. in Opp'n to Pls.' Mot. to Remand, Doc. 7 ¶¶ 3-4.) Plaintiffs filed a motion to consolidate that action with the present one, and Defendants have agreed to consolidate. (Pls. Mot. to Remand, Doc. 3, ¶ 4 n.1; see also Response of Defs. in Opp'n to Pls.' Mot. to Remand, Doc. 7 ¶ 4.)

DISCUSSION

I. When Is the Thirty-day Removal Period Triggered?

The removal statute provides that "[t]he 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).

Interpreting this provision, the Supreme Court rejected the "mere receipt" rule that a number of courts had until then embraced and held instead that a defendant's time to remove "is triggered by simultaneous service of the summons and complaint, or receipt of the complaint 'through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999) (holding that time for filing notice of removal began to run when plaintiff formally served defendant, not at the earlier date when plaintiff faxed defendant a file-stamped "courtesy copy" of his recently filed complaint). The Court reached this conclusion because "one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend." Id. at 350.

Courts that followed the receipt rule reasoned that the words "after receipt ... through service or otherwise, of a copy of the initial pleading," meant that if a defendant had the complaint, formal service was not necessary to trigger the time period for removal. The Supreme Court, though, clarified that the language of § 1446(b) was changed from the original -- which triggered the time limit "after commencement of a civil action or service of process, whichever is later" -- because in some states service was effective upon a summons only, without a complaint, and a defendant's period for removal could have expired before the defendant had access to the complaint. Id. at 351-52. The change, the Court stated, was made so that defendants would not have to take steps to remove a suit before they knew what the case was about. Id. The Court stated, "[i]t would take a clearer statement than Congress has made to read its endeavor to extend removal time (by adding receipt of the complaint) to effect so strange a change -- to set removal apart from all other responsive acts, to render removal the sole instance in which one's procedural rights slip away before service of a summons, i.e., before one is subject to any court's authority." Id. at 356. A court may not exercise power over one who is named as a defendant "[i]n the absence of service of process (or waiver of service by the defendant)." Id. at 350.

Murphy Brothers, as courts have noted, "addresses when the thirty-day time period for removal begins, not the proper method for service." Drain v. Accredited Home Lenders, Inc., 219 Fed. Appx. 791, 796 (10th Cir. 2007). The question of whether service, or waiver thereof, occurred remains a question of state law. "It is not possible to state definitely in general terms the precise scope and effect of the word 'otherwise' in its context here because its proper application in particular situations will vary with state procedural requirements as to the method of effecting service of summons and time and place of filing the complaint." Murphy Bros., 526 U.S. at 353(quoting Potter v. McCauley, 186 F. Supp. 146, 149 (D.C. Md. 1960)).

Potter itself is factually similar to the case at hand. There, because it was "not legally possible" for plaintiff, a Maryland resident, to personally serve defendant, a resident of the District of Columbia, plaintiff's counsel sent a letter to defense counsel, enclosing a copy of the complaint which had been filed, and "inquired whether the defendant would accept service or would the plaintiff be required to 'advertise,'" meaning, effect service by publication. 186 F. Supp. 146, 147 (D.C. Md. 1960). There had been failed negotiations between the parties before the commencement of the suit, and after the mailing to defense counsel, "there were further conferences between opposing counsel but there was no acceptance by defendant's counsel of service, and no service or attempt thereof was ever made." Id. The defense ...


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