or serving initial pleading [sic] until sometime later. For those states, the removal period begins whenever defendant receives a copy of the initial pleading." Thomason v. Republic Insurance Co., 630 F. Supp. 331, 333-334 (E.D.Cal. 1986). Thus, the Love line of cases apply the perfected process rule in all states but those with so-called New York Rules. California is not one of those states, so, the argument concludes, service must be perfected before the removal period begins. While many courts have found this logic persuasive, as discussed in Part II.B, infra, we find the reasoning of the Tyler line to be more persuasive.
Plaintiff also attempts to rely upon the Ninth Circuit's opinion in Pochiro, supra. While the Ninth Circuit did reject an attempt to remove beyond the 30 day period, the court did so because there was no "claim that Prudential otherwise received a copy of [the] complaint before . . . the thirtieth day prior to the filing of the petition for remand." Id. 827 F.2d at 1249. Thus, the Ninth Circuit did not reach the same issue presented today.
B. Receipt Rule.
The Tyler line of cases require only receipt of the complaint and give the "or otherwise" language a common sense reading. Again, the pertinent language reads as follows: "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) (emphasis added). Several arguments can be made in support of reading this language to start the removal period upon receipt of the complaint.
First, the plain language of the statute shows that formal service is not required, and we are not to read more into statutes than is clear on the face. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987); INS v. Phinpathya, 464 U.S. 183, 189, 78 L. Ed. 2d 401, 104 S. Ct. 584 (1984); American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 71 L. Ed. 2d 748, 102 S. Ct. 1534 (1982). The plain language of Section 1446(b) indicates that the 30 day removal period begins when the defendant receives a copy of the complaint. As Judge Ingram concluded: "This court . . . remains convinced that 'receipt by defendant, through service or otherwise' means 'receipt by defendant, through service or otherwise.'" Silverwood, 793 F. Supp. at 228. We are equally convinced that reading the plain language of the statute in this manner is most appropriate.
Second, requiring perfected service would run contrary to our instruction from the Ninth Circuit and the Supreme Court "that removal statutes are strictly construed against removal." Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979), citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85 L. Ed. 1214 (1941).
Third, Congress' purpose in enacting the removal statute, as noted earlier, was to establish a uniform federal system of removal. If the statute is read literally so that actual receipt of the complaint triggers the removal period, uniformity will be achieved. See Schwartz Brothers, Inc. v. Striped Horse Records, 745 F. Supp. 338, 340 (D.Md. 1990).
Fourth, the legislative intent argument set forth above is not persuasive. As one district court has observed:
While Thomason's explanation of the purposes behind the amendment is consistent with the house and senate reports on the bill, its conclusion that the "or otherwise" language is intended only for those states following the "New York rule" is not. Whatever the congressional impetus for the amendment, if Congress had intended to require service, in all circumstances, or limit the "or otherwise" language to application in certain states, it surely could have written the statute explicitly to achieve that result.