Bognar et al v. Blanton et al
Filing
13
OPINION AND ORDER remanding case to the St. Joseph County Superior Court. Signed by Judge Rudy Lozano on 9/8/11. (ksc) (cc: St. Joseph County Superior Court Clerk) Modified on 9/9/2011 (ksc).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROSE MARY and WILLIAM BOGNAR, )
Individually, and as husband )
and wife,
)
)
Plaintiffs,
)
)
vs.
)
)
ROBERT BLANTON and ANNETTE
)
HOLDINGS, INC. d/b/a TMC
)
TRANSPORTATION,
)
)
Defendants.
)
NO. 3:10-CV-173
OPINION AND ORDER
This matter is before the Court on the Objection to Notice of
Removal of Civil Action (DE #7), filed by Plaintiffs Rose Mary and
William Bognar.
For the reasons set forth below, the Objection,
which the Court has construed as a Motion to Remand, is GRANTED and
this case is ORDERED REMANDED to the St. Joseph County Superior
Court.
BACKGROUND
On March 11, 2010, Rose Mary and William Bognar (collectively,
“Plaintiffs”), filed a Complaint in the St. Joseph County Superior
Court (71D04-1003-CT-00048).
The Complaint alleges that Defendant
Robert
Blanton
(“Blanton”)
disregarded
a
red
traffic
signal,
causing the semi-truck he was driving to collide with Plaintiff
Rose Mary Bognar’s vehicle.
(DE #1, p. 1.)
The Complaint states:
As a proximate result of collision, Plaintiff,
Rose Mary Bognar, sustained serious physical
injuries, which is [sic] permanent, and pain
and suffering. [T]he Plaintiff incurred
hospital and medical expenses and may incur
such expenses and losses in the future, as
well as the loss of a whole and useful life.”
(Id. at 1-2.) The Complaint further alleges that Defendant Annette
Holdings,
Inc.,
d/b/a
TMC
Transportation
(“Annette
Holdings,
Inc.”), is “vicariously liable for the careless and negligent acts
of its agent and/or employee, Robert Blanton, while driving in the
course and scope of his employment at the time of the accident.”
(Id. at 2.)
Plaintiff William Bognar, Rose Mary Bognar’s spouse,
also brings a claim because he “lost the services and consortium of
his spouse.”
(Id.)
On May 3, 2010, a Notice of Removal of Civil Action (“Notice
of Removal”) was filed by Annette Holdings, Inc. and Defendant
Blanton (collectively, “Defendants”) (DE #2).
Defendants
set
forth
their
contentions
for
diversity jurisdiction under 28 U.S.C. § 1332.
In that Notice,
removal
based
on
On May 6, 2010,
Plaintiffs filed an Objection to Notice of Removal of Civil Action
(“Objection”), claiming that Defendants’ Notice of Removal is
untimely under 28 U.S.C. § 1446(b).
(DE #7.)
On the same day
Plaintiffs filed their Objection, Defendants filed a Verified
Response to Plaintiff’s Objection to Notice of Removal of Civil
2
Action (“Response”) and provided a declaration that they were
unable to file the Notice of Removal in a timely manner due to
“technical difficulties” of the CM/ECF system.
#8-1, p. 1.)
(DE #8, p. 2; DE
On May 7, 2010, Plaintiffs filed a Reply to
Defendants’ Verified Response to Objection to Notice of Removal of
Civil Action (“Reply”) (DE #9).
Because questions existed regarding the content and timing of
the
Notice
of
Removal,
the
Court
took
the
Objection
under
advisement and ordered Defendants to submit an amended Notice of
Removal which provided information regarding the timing of the
service of the Complaint and the basis for the assertion of
diversity jurisdiction (DE #10). The Court also granted Plaintiffs
leave
to
file
a
supplemental
brief
detailing
any
additional
arguments they deem necessary to support their Objection based upon
the Defendants’ Notice of Removal.
Defendants have now filed a Verified Amended Notice of Removal
of Civil Action (“Amended Notice of Removal”) (DE #11).
In the
Amended Notice of Removal, Defendants set forth their contentions
for removal based on diversity jurisdiction under 28 U.S.C. § 1332
as follows: (1) the amount in controversy “exceeds $75,000 based
upon claimed medical special damages of $35,988.83 as submitted by
counsel for Plaintiff in correspondence of February 17, 2010, and
3
. . . the claims of serious, permanent physical injuries1;” (2)
Plaintiffs are citizens of Indiana; (3) Defendant Annette Holdings,
Inc. is an Iowa corporation with its principal place of business in
Des Moines, Iowa; and (4) Defendant Blanton is a citizen of the
state of Tennessee with his primary residence located at 745 Benson
Town Road, Savannah, Tennessee.
(DE #11, p. 3.)
Defendants have attached certified mail return receipts which
verify that Defendant Blanton was served on March 27, 2010 (DE #111, p. 1), and Defendant Annette Holdings, Inc. was served on March
29, 2010 (DE #11-2, p. 1).
Both parties agree that, in order to be
timely under the thirty (30) day requirement found in 28 U.S.C.
section 1446(b), the Notice of Removal must be deemed by this Court
filed as of April 28, 2010.
While the original Notice of Removal indicated, with no
qualifications or other explanations, that the Notice was “filed
with this Court within 30 days after service on removing parties”
(DE #2, p. 2), the Amended Notice of Removal explains at length
that Defendants first “attempted” to electronically file the Notice
of Removal on April 28, 2010, but were unable to “complete” the
filing until April 29, 2010.
(DE #11, p. 2.)
Defendants state:
7.
Upon learning the date of service, the
undersigned and his assistant attempted to
file the Notice of Removal of Civil Action via
CM/ECF electronic filing pursuant to the local
1
Defendants also state that they have been provided with photographs
showing extensive bruising around the abdomen and lower body and that
preliminary settlement discussions would support the conclusion that
Plaintiffs are seeking in excess of $75,000. (DE #11, p. 3.)
4
rules at approximately 4:30 p.m. on April 28,
2010.
8.
Counsel was unable to complete the
electronic filing because the action had not
yet been assigned a cause number in the United
States District Court for the Northern
District of Indiana, South Bend Division and
the filing could not be accepted without a
cause number.
9. The undersigned attempted to telephone the
Court to discuss the situation but the
recording indicated that regular business
hours ended at 4:00 p.m.
10. By the time counsel had attempted to file
the pleadings electronically and attempted to
contact the Court the time was after 5:00 p.m.
on April 28, 2010 and it was determined that
he would phone the Court in the morning.
11. Upon reaching the Court on the morning of
April 29, 2010 we were told to file the
pleadings conventionally on paper and serve
them via regular mail, which was performed on
April 29, 2010.
12. Service of the Notice of Removal of Civil
Action, Appearance and Jury Demand were made
upon plaintiffs’ counsel via regular mail on
April 29, 2010.
(DE #11, pp. 2-3).
The filings were not received by the Clerk’s
Office until May 3, 2010.
Plaintiffs have filed a Response to the Amended Notice of
Removal, again stating that Defendants’ Amended Notice of Removal
is untimely, that there was no excusable “technical failure” of the
CM/ECF system which caused the untimely filing, and that the “only
failure was that of Defendants’ counsel for not acting promptly to
file the notice of removal and not understanding how to properly
5
use the CM/ECF system.
This simply does not excuse the untimely
filing and does not extend the strict time limitation mandated by
28 USC § 1446(b).”
(DE #12, p. 2.)
DISCUSSION
A case may be removed from state court to federal court if it
is based on statutorily permissible grounds and if it is timely.
Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004).
See 28 U.S.C. § 1441; 28 U.S.C. § 1446.
The Seventh Circuit has
directed that, “[c]ourts should interpret the removal statute
narrowly and presume that the plaintiff may choose his or her
forum.
Any doubt regarding jurisdiction should be resolved in
favor of the states, and the burden of establishing federal
jurisdiction
falls
on
the
party
seeking
removal.”
Doe
v.
Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citations
omitted).
is proper.
The party seeking removal must demonstrate that removal
Boyd, 366 at 529.
“[I]t is not enough to file a
pleading and leave it to the court or the adverse party to negate
jurisdiction.”
Brill v. Countrywide Home Loans, Inc., 427 F.3d
446, 447 (7th Cir. 2005) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992).
When challenged, the party seeking
federal jurisdiction bears the burden of proving by a preponderance
of the evidence that a case belongs in federal court.
Meridian
Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540-43 (7th Cir. 2006).
Even where not challenged by the party opposing removal, “federal
6
courts are always obliged to inquire sua sponte whenever a doubt
arises as to the existence of federal jurisdiction.”
Tylka v.
Gerber Products Co., 211 F.3d 445, 447 (7th Cir. 2000) (quotation
marks and citation omitted).
The Court, therefore, must complete
a two step process when determining whether a motion to remand
should be granted.
A remand order based on the authority of 28 U.S.C. section
1447(c), which includes a defect in the removal procedure, is not
reviewable on appeal.
Market-Timing
See 28 U.S.C. § 1447(d); In re Mutual Fund
Litigation,
495
F.3d
366,
368
(7th
Cir.
2007)
(“untimely removals are procedurally defective, and thus within the
scope of § 1447(c), so § 1447(d) [is] fully applicable.”)
Subject-matter Jurisdiction
Defendants
diversity
removed
this
jurisdiction.
28
case
from
U.S.C.
court
1332.
§
state
For
based
on
diversity
jurisdiction to exist, the parties are required to have diverse
citizenship and the matter in controversy must exceed the sum or
value of $75,000.
burden
to
28 U.S.C. § 1332(a).
demonstrate
that
both
It is a removing party’s
the
complete
diversity
of
citizenship and the amount in controversy requirements were met as
of the time it filed its notice of removal.
Tylka, 211 F.3d at 448
(citing In re County Collector, 96 F.3d 890, 895 (7th Cir. 1996);
NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 237 (7th Cir.
1995)).
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Although the Court originally had concerns regarding proper
allegations of diversity jurisdiction (see Court’s Order DE #10,
pp. 7-12), the Amended Notice of Removal has cured those defects,
and Plaintiffs do not dispute that diversity jurisdiction exists.
Therefore, the Court moves to the second step of the analysis.
Procedural Requirements
Defendants desiring to remove a civil action from state court
to federal court must comply with the procedures set forth in 28
U.S.C. § 1446.
These procedures mandate that the notice “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).
Although the thirty
day time limit in § 1446(b) is not jurisdictional, it is a
mandatory
and
strictly
applied
rule
of
procedure.
Northern
Illinois Gas Co. v. Airco Industrial Gases, 676 F.2d 270, 273 (7th
Cir. 1982). The Supreme Court has clarified that the removal clock
under § 1446(b) is triggered when one of four events occurs: (1) if
the summons and complaint are served together, the 30-day period
for removal runs at once; (2) if the defendant is served with the
summons but the complaint is furnished to the defendant sometime
after, the period for removal runs from the defendant’s receipt of
the complaint; (3) if the defendant is served with the summons and
the complaint is filed in court, but under local rules, service of
8
the complaint is not required, the removal period runs from the
date the complaint is made available through filing; and (4) if the
complaint is filed in court prior to any service, the removal
period runs from the service of the summons.
Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999).
In terms of the actual filing/docketing of the notice of
removal, the Court notes that several of the Local Rules and the
CM/ECF Civil and Criminal User Manual (the “Manual”) seemingly
overlap. For example, in this district, the Local Rules hold that:
Documents may be filed, signed and verified by
electronic means to the extent and in the
manner authorized by the CM/ECF User Manual
approved by the court. A document filed by
electronic means in compliance with this Local
Rule constitutes a written paper for the
purposes of these Local Rules, the Federal
Rules of Civil Procedure and the Federal Rules
of Criminal Procedure.
N.D. Ind. L.R. 5.1.
The approved Manual states:
Unless otherwise permitted by these procedures
or otherwise authorized by the assigned judge,
all documents submitted for filing in this
district in civil and criminal cases, no
matter when a case was originally filed, shall
be filed electronically using the System.
CM/ECF Civil and Criminal User Manual section II(A)(1).
the Manual also provides:
All new civil complaints must be filed
conventionally on paper, accompanied by a
Civil Cover Sheet (JS-44c) and summons forms
with the top portion completed.
The court
will upload these documents into the System.
9
However,
CM/ECF Civil and Criminal User Manual section II(B) (emphasis
added).
The Manual further states that:
Filing documents electronically does not alter
any filing deadlines or any time computation
pursuant to Fed. R. Civ. P. 6. . . .
Nevertheless, all electronic transmissions of
documents must be completed (i.e., received
completely by the clerk’s office) prior to
midnight Eastern Time . . . in order to be
considered timely filed that day, regardless
of the local time in the division where the
case is pending.
Although documents can be
filed electronically 24 hours a day, filers
are strongly encouraged to file all documents
during hours when the CM/ECF Help Line is
available, from 9:00 a.m. to 4:00 p.m. local
time.
CM/ECF Civil and Criminal User Manual section II(I).
section describing technical failures, the Manual states:
A. The Court’s System
The Clerk shall deem the Public Web site for
the Northern District of Indiana to be subject
to a technical failure on a given day if the
site is unable to accept filings continuously
or intermittently over the course of any
period of time greater than one hour after
12:00 noon that day, in which case filings due
that day which were not filed due solely to
such technical failures shall become due the
next business day. Such delayed filings shall
be
rejected
unless
accompanied
by
a
declaration or affidavit attesting to the
filing person’s failed attempts to file
electronically at least two times after 12:00
p.m. separated by at least one hour on each
day of delay due to such technical failure. .
. .
B. The Attorney’s System
If the attorney is unable to file a document
in
a
timely
manner
due
to
technical
difficulties in the user’s system, the
10
In the
attorney must file a document with the court
as soon as possible notifying the court of the
inability to file the document. . . .
CM/ECF Civil and Criminal User Manual section VI.
Although
there
was
some
dispute
originally
as
to
the
applicable dates (see Court’s Order DE #10, pp. 13-15), both
parties now agree that Defendant Blanton received the Summons and
Complaint via certified mail on March 27, 2010, and that Defendant
Annette Holdings, Inc. received the Summons and Complaint via
certified mail on March 29, 2010.
Therefore, the dispute centers
around whether Defendants’ “attempted” electronic filing of the
Notice of Removal on April 28, 2010, was sufficient to stop the
thirty (30) day removal clock.
For the reasons set forth below,
the Court finds that it did not.
As an initial matter, the Court is troubled by the fact that
Defendants made no mention of their filing difficulties when they
submitted their original Notice of Removal.
Instead, they simply
stated that the Notice was “filed with this Court within 30 days
after service on removing parties.”
It was not until after
Plaintiffs filed their Objection to the Notice of Removal that
Defendants submitted a Declaration detailing their failed efforts
to file electronically via the CM/ECF on April 28, 2010.
The
Manual clearly states that an attorney must file a document “as
soon as possible” to notify the Court of any filing issues.
The
Court is at a loss to understand why this declaration/verification
was not filed along with the other removal documents on May 3,
11
2010. Although not dispositive of the matter, the Court notes that
it
should
not
have
taken
Plaintiffs’
Objection
to
prompt
Defendants’ explanation.
Defendants initially claimed that there was a “technical
failure” of the CM/ECF which caused the delay in filing.
However,
the Court finds that, based on the wording of the Manual, there was
neither a technical failure of the Court’s system nor of the
attorney’s system.
failure.
The facts presented do not support a technical
Defendants are correct in noting that the Manual states
“[u]nless otherwise permitted,” all documents “shall be filed
electronically using the System.”
Manual
also
reveals
that
However, a close reading of the
“civil
complaints
must
be
filed
conventionally on paper” and that the Court will then upload these
documents into the System.
A notice of removal is analogous to a federal civil complaint
in that it is the initiating document of the federal portion of the
case; indeed, the notice of removal must include a copy of the
complaint.
See White v. Wellington, 627 F.2d 582, 587 (2d Cir.
1980)(“The petition to remove is analogous to a pleading.”); see
also 28 U.S.C. § 1446(a) (“A defendant . . . shall file in the
district court . . . a notice of removal . . . containing a short
and plain statement of the grounds for removal, together with a
copy of all process, pleadings, and orders served upon such
defendant”) (emphasis added).
This is not a case of a pro se filer
who is unaware of the complexities of civil litigation.
12
The Court
does not think it unreasonable to require a practicing attorney to
read the Local Rules, the Manual, and the Federal Rules of Civil
Procedure together to conclude that a notice of removal must be
filed conventionally on paper in order to initiate a federal
removal action.
Therefore, the Court finds that there was a
misunderstanding by Defendants of the filing procedures in general,
rather than a technical failure of any kind.
The “attempted
filing” of the Notice of Removal via the CM/ECF on April 28, 2010,
did not stop the removal clock because the document was not
tendered to the Clerk of the Court until May 3, 2010.2
As such,
the Notice of Removal is untimely and the case must be remanded on
this basis.
As a final matter, the Court notes it has taken to heart the
Seventh Circuit’s directive that it should “interpret the removal
statute narrowly and presume that the plaintiff may choose his or
her forum.”
Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th
Cir. 1993) (citations omitted).
Defendants are not significantly
2
Although neither party provides arguments or citations to applicable
Seventh Circuit case law, the Court is aware of several instances in which the
Seventh Circuit, relying in part on Federal Rule of Civil Procedure 5(d)(4),
has held that documents tendered via the CM/ECF should not be later rejected
because of a technical error. See Vince v. Rock County, Wis., 604 F.3d 391,
393 (7th Cir. 2010) (“[t]he software that operates an e-filing system acts for
‘the clerk’ as far as Rule 5 is concerned; a step forbidden to a person
standing at a counter is equally forbidden to an automated agent that acts on
the court's behalf”); Farzana K. v. Indiana Dept. of Educ., 473 F.3d 703, 708
(7th Cir. 2007) (an electronic filing system “must accept every document
tendered for filing.”). This case is distinguishable, however, because,
unlike in Vince and Farzana where there was a clear record of the documents
being filed electronically and then later rejected by the system due to a
technicality, there is insufficient evidence in this case that the documents
were ever timely “tendered” to the Clerk of the Court for acceptance (or
rejection) on April 28, 2010; the removal documents were not submitted to the
Clerk of the Court in any manner until May 3, 2010.
13
prejudiced by this remand order, nor are they deprived of their
right to defend themselves before a competent court of law.
Here,
Plaintiffs have objected to removal and have presented a legitimate
reason, namely the untimeliness of the Notice of Removal, for the
case to be remanded to state court.
The Court, in its discretion,
concludes that this result, resolving any doubt in favor of the
states, most closely complies with Doe.
CONCLUSION
For the reasons set forth above, the Objection (DE #7), which
the Court has construed as a Motion to Remand, is GRANTED and this
case is ORDERED REMANDED to the St. Joseph County Superior Court.
DATED: September 8, 2011
/s/RUDY LOZANO, Judge
United States District Court
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