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CARTER v. BUILDING MATERIAL & CONSTR. TEAMSTERS' U

June 18, 1996

DARLENE CARTER, Plaintiff,
v.
BUILDING MATERIAL AND CONSTRUCTION TEAMSTERS' UNION LOCAL 216, et al., Defendants.



The opinion of the court was delivered by: LYNCH

 I. INTRODUCTION

 Plaintiff Darlene Carter filed her lawsuit in San Francisco Superior Court on November 17, 1995 against defendants Building Material and Construction Teamsters Union Local 216 ("Union"), International Brotherhood of Teamsters ("Teamsters"), Christopher Welsh, Ron Carey, and Tom Gilmartin, Jr. Plaintiff's complaint alleges various employment-related claims, including violations of Title VII.

 Plaintiff sent, via registered mail, a copy of the filed complaint to each defendant, along with a letter which stated that the copy of the complaint was a courtesy copy and that formal service would follow. The letter invited defendants to discuss settlement, stating "Ms. Carter is amenable to meaningful settlement negotiations as an alternative to service of the Complaint followed by lengthy, expensive and potentially embarrassing litigation."

 The parties were unable to resolve their dispute informally, and defendants were served on February 26, 1996. On March 18, 1996, defendant Teamsters filed a Notice of Removal to this Court in which all other defendants joined. Plaintiff has moved to remand on the grounds that the removal was untimely. The matter has been fully briefed and argued.

 II. DISCUSSION

 A. Receipt By Service Or Otherwise

 The procedure for timely removal is set forth in 28 U.S.C. § 1446(b), which provides in pertinent 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). This case turns on the meaning of the language "receipt by the defendant, through service or otherwise."

 Plaintiff contends that the phrase "receipt by the defendant, through service or otherwise" should be strictly construed, arguing that the defendants' receipt of courtesy copies of the complaint started the clock for defendants' notice of removal. She argues that defendants' deadline for a timely removal expired thirty days after their receipt of her November 21, 1995 mailing. Defendants assert that the time for removal did not begin to run until February 26, 1996, the date on which defendants were served, such that their March 18, 1996 Notice of Removal was timely.

 1. Split in Authority

 The Ninth Circuit has not addressed this issue. However, a number of other courts have and there is a split at the district court level on whether "receipt by the defendant, through service or otherwise" is accomplished by simple receipt of the pleading, or alternately whether the statute requires formal service of process. See, e.g., Thomason v. Republic Ins. Co., 630 F. Supp. 331, 332 (E.D. Cal. 1986) (noting split in authority and finding time for removal runs from service or "equivalent of service"). See also, Lofstrom v. Dennis, 829 F. Supp. 1194 (N.D. Cal. 1993) (holding receipt of complaint triggers removal period); Bennett v. Allstate Ins. Co., 753 F. Supp. 299 (N.D. Cal. 1990) (holding time for removal begins to run upon service of complaint). The cases which find that the time for removal does not run until service of the complaint have looked to the legislative history of § 1446(b). However, the Circuit courts which have considered this issue have strictly construed the language of the statute. See, e.g., Roe v. O'Donohue, 38 F.3d 298 (7th Cir. 1994); Silva v. City of Madison, 69 F.3d 1368 (7th Cir. 1995); Tech Hills II Assoc. v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963 (6th Cir. 1993). See also, T.H. Inc. v. 6218 Investors, 41 F.3d 235 (5th Cir. 1995). Defendants have cited no Circuit court case holding that the time for removal begins to run only upon service or quasi-service.

 District courts which have held that service is required before the time for removal begins to run have relied on the legislative history of § 1446. See, e.g., Love v. State Farm Mut. Auto. Ins. Co., 542 F. Supp. 65 (N.D. Ga. 1982). Section 1446 was amended in 1948 in order to make removal procedures more uniform. The amended provision provided that a removal petition be filed "within twenty days after commencement of the action or service of process, whichever is later." 62 Stat. 939 (1948). However, some states, such as New York, require only that a plaintiff serve a defendant with a summons, rather than serving or filing a complaint, in order to commence an action. The amendment thus permitted the removal period to run before a defendant received a copy of the complaint which would permit him to determine any grounds for removal. In 1949, the section was amended again. The amended statute provided that the time for removal began to run "after the receipt by the defendant through service or otherwise, of a copy of the initial pleading." The Love court concluded "thus, the 'through service or otherwise' language was intended to expand the removal period in states following the New York Rule. It was not intended to diminish the right to removal, by permitting a plaintiff to circumvent the already existing requirement of personal service through informal service." Love, 542 F. Supp. at 67.

 Cases relying on the "receipt rule" look to the plain language of the statute and give it "a common sense reading." Lofstrom v. Dennis, 829 F. Supp. at 1197. These cases find that there is no need to go beyond the plain language of the statute, finding that "'receipt by the defendant through service or otherwise' means 'receipt by the defendant through service or otherwise.'" Silverwood Estates v. Adcock, 793 F. Supp. 226, 228 (N.D. Cal. 1991). See also, Lofstrom at 1197.

 The Sixth Circuit was the first circuit to address the issue. In Tech Hills II, plaintiff had its complaint delivered by Federal Express to defendant's closed office building on a Saturday. The complaint was received on May 20 by a building security guard, who was not authorized to accept service. The complaint was received by defendant on Monday, May 22 and removed within thirty days of May 22. The court found that "the removal period is commenced when the defendant ...


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