The opinion of the court was delivered by: THELTON HENDERSON
This matter came before the Court on June 21, 1993 on Plaintiff's motion to remand to state court. After hearing argument from counsel, we ordered Mr. Gerhard Stoll, counsel for Defendant Dianne Dunne, to provide additional information to the Court. On August 2, 1993, after reviewing all available information and carefully considering all arguments presented, we granted Plaintiff's motion for remand. After issuing the August 2 Order, we received additional factual information relevant to the disposition of this motion. Accordingly, we issue this Superseding Order, granting Plaintiff's motion for remand. Our legal analysis and conclusion remain the same, as this Superseding Order only serves to clarify certain facts that were previously obscured.
Pursuant to 28 U.S.C. § 1446(b), Plaintiff has moved for this Court to remand this case to San Francisco Superior Court, from which it was removed.
Plaintiff sued Defendants in state court, alleging breach of contract, fraud, negligent misrepresentation, and breach of fiduciary duty, stemming from the nonpayment of a promissory note.
The summons, complaint and form of notice and acknowledgment in the original Superior Court lawsuit were mailed on February 23, 1993 to Defendant Dunne's counsel, Gerhard Stoll ("Stoll"), after Plaintiff's counsel, Christopher Cole ("Cole"), spoke with Stoll about the case. Stoll received these papers on February 25, 1993. Also on February 25, 1993, Stoll received authorization from Defendant Dunne to represent her in this matter. Stoll mailed a copy of the complaint to Defendant Dunne on February 26, 1993, which was received by Dunne a few days thereafter. Thus, as Defendant admits, Defendant Dunne had constructive receipt of the complaint on February 25 and actual receipt a few days thereafter. On March 16, 1993, Stoll executed the notice and acknowledgment and returned it to Cole. Notice of removal was filed in this Court on April 14, 1993, 29 days after formal completion of service but more than 30 days after Stoll's actual receipt, and Dunne's actual receipt of the complaint.
28 U.S.C. § 1446(b) reads, in relevant part: "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 . . ." (emphasis added).
Before discussing the proper interpretation of Section 1446(b), we first address the issue of authorization to receive process. Receipt by anyone authorized by the defendant to receive service is sufficient to start the period for removal running. See Pochiro v. Prudential Insurance Co. of America, 827 F.2d 1246 (9th Cir. 1987); Getty Oil Corp. v. Insurance Co. of North America, 841 F.2d 1254, 1262-63 (5th Cir. 1988); General Beverage Sales Company v. Zonin S.p.A., 589 F. Supp. 846, 847 (W.D.Wis. 1984); Schwarzer, et al., Cal. Prac. Guide: Fed. Civ. Pro. Before Trial P 2:904 (1993); Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d, § 3732.
Stoll had authorization to represent Defendant Dunne in this matter on February 25, 1993.
Under the facts as set forth above, constructive receipt by Defendant Dunne may be set at February 25, 1993 and her actual receipt occurred a few days thereafter. Having ...