DerMargosian et al v. Arpin American Moving Systems LLC
Filing
13
MEMORANDUM OPINION AND ORDER: The court grants the 7 motion and remands this case to county court, although it denies plaintiffs' request for attorney's fees. (Ordered by Chief Judge Sidney A Fitzwater on 3/4/2013) (twd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MR. & MRS. GREG DERMARGOSIAN, §
§
Plaintiffs,
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§ Civil Action No. 3:12-CV-4687-D
VS.
§
§
ARPIN AMERICA MOVING
§
SYSTEMS, LLC,
§
§
Defendant.
§
MEMORANDUM OPINION
AND ORDER
The dispositive question presented by plaintiffs’ motion to remand is whether under
Fed. R. Civ. P. 6(d), and in the circumstances of this case, three days are added to the 30-day
removal period prescribed by 28 U.S.C. § 1446(b)(1). Concluding that Rule 6(d) does not
enlarge the removal period in the present circumstances, the court grants the motion and
remands this case to county court, although it denies plaintiffs’ request for attorney’s fees.
I
Because this motion turns on the timeliness of removal, the pertinent background facts
are few. Plaintiffs Mr. and Mrs. Greg DerMargosian (“the DerMargosians”) filed this
lawsuit against Arpin America Moving Systems, LLC (“Arpin”) in county court on October
8, 2012. On October 12, 2012 the DerMargosians filed a first amended petition. That same
day, the clerk of the county court mailed, and on October 16, 2012 Arpin received, the
citation and plaintiffs’ first amended petition. Arpin filed its notice of removal on November
16, 2012, i.e., 31 days after Arpin received the citation and first amended petition.1
The DerMargosians move to remand, contending, in pertinent part, that Arpin’s
removal was one day late and therefore untimely. Arpin argues in response that, since it was
served by mail with the first amended petition, three days are added to the 30-day period
under Rule 6(d), and its removal of the case is therefore timely.
II
28 U.S.C. § 1446(b)(1) provides, in relevant part, that “[t]he notice of removal of a
civil action or proceeding shall be filed within 30 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[.]” Id. (emphasis added). Rule 6(d) states
that, “[w]hen a party may or must act within a specified time after service and service is
made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would
otherwise expire.” Id. (emphasis added).2 Section 1446(b)(1) makes clear that the removal
1
The DerMargosians filed a second amended petition on November 15, 2012. Arpin
filed an answer to the second amended petition the same day. Arpin does not argue that the
filing of the second amended petition created a new removal window.
2
Although neither side raises this point, the court notes that, assuming the 30-day
statutory period could be extended by a rule of procedure, the pertinent rule of procedure
could be Tex. R. Civ. P. 21a rather than Rule 6(d). When a case is removed, the federal court
takes the case as it finds it, subject to the applicable federal rules, and treats everything that
occurred in the state court as if it had taken place in federal court. Vernon Sav. & Loan
Ass’n, FSA v. Commerce Sav. & Loan Ass’n, 677 F. Supp. 495, 498 (N.D. Tex. 1988)
(Fitzwater, J.). But it is arguable that prior to removal—i.e., at the time when a case is not
yet in federal court—the Texas Rules of Civil Procedure rather than the Federal Rules of
Civil Procedure control. The court need not resolve this question, however, because Tex. R.
Civ. P. 21a is essentially the same as Rule 6(d). Like Rule 6(d), Tex. R. Civ. P. 21a provides
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period is triggered by receipt, not by service. See Air Starter Components, Inc. v. Molina,
442 F.Supp.2d 374, 377 (S.D. Tex. 2006) (“[T]he thirty-day removal clock begins to run
when a defendant receives a pleading, motion, or other paper that reveals on its face a basis
for federal jurisdiction.”) (citing Chapman v. Powermatic, Inc., 969 F.2d 160, 164 (5th Cir.
1992)); see also Marquis Acquisition, Inc. v. Steadfast Ins. Co., 2010 WL 2900339, at *3
(N.D. Tex. July 20, 2010) (Fitzwater, C.J.) (“[D]efendants were required to remove the case
within 30 days of their receipt of the original petition.”). Because the date by which notice
of removal must be filed is tied to receipt rather than service, Rule 6(d) does not apply.3
The distinction between service and receipt for purposes of adding three days makes
sense. For example, in the case of service by mail, service is considered complete when the
pleading or other paper is deposited in the mail. See Rule 5(b)(2)(C) (“service is complete
upon mailing); Harcon Barge Co. v. D & G Boat Rentals, Inc., 746 F.2d 278, 289 (5th Cir.
1984) (“Service by mail is complete upon mailing.”) (citing former Rule 5(b)). Because the
clock starts upon mailing, three days are added to provide a roughly equal period to act to
those who receive personal service and those who receive service through a less direct route.
that, “[w]henever a party has the right or is required to do some act within a prescribed
period after the service of a notice or other paper upon him and the notice or paper is served
upon by mail or by telephonic document transfer, three days shall be added to the prescribed
period.” Id. (emphasis added).
3
Moreover, because Rule 6(d) is tied to service made under Rule 5(b)(2)(C), (D), (E),
or (F), it can only apply to service that is permitted and made under Rule 5, which is limited
to what is covered in Rule 5(a)(1)(A)-(E). Service under Rule 4, which is more common
because it governs service of the summons and complaint, is not affected by Rule 6(d).
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See 1 Moore’s Federal Practice § 6.05[1] (3d ed. 2012). When a time period for acting is
premised on service, such an extension is justifiable. But a similar justification cannot be
found when receipt is the triggering event because there is no lag or risk of failure for which
to account. See Mitchell v. Ky.-Am. Water Co., 178 F.R.D. 140, 142 (E.D. Ky. 1997). The
court therefore holds that, in the circumstances of this case,4 Rule 6(d) does not extend the
30-day removal period prescribed in § 1446(b)(1). This accords with the majority view when
presented with similar circumstances. See Daniel v. United Wis. Life Ins. Co., 84 F.Supp.2d
1353, 1356 (N.D. Ala. 2000) (“[T]he great majority of courts to consider the issue have
concluded that Rule 6(d) does not extend the statutory 30-day period for filing a notice of
removal.”); see also Knight v. J.I.T. Packaging, Inc., 2008 WL 4981081, at *2 (N.D. Ohio
Nov. 24, 2008) (collecting cases).
The district courts that reach a contrary result appear to do so on the basis that receipt
of a pleading or paper for purposes of § 1446(b)(1) is the date on which service is made
under state law, even if the defendant has not yet in fact received the pleading or paper. For
instance, if, as in federal law, service by mail under state law is complete upon mailing, then
the defendant has received the initial pleading for purposes of § 1446(b)(1) when the mailing
occurs. See, e.g., Grossman v. ABC Appliance, Inc., 1999 U.S. Dist. LEXIS 2786, at *5
(E.D. Mich. Feb. 9, 1999); Orr v. Trina, Inc., 1994 WL 28028, at *1 (N.D. Cal. Jan. 21,
4
The court need not address whether there are other circumstances where the 30-day
period would be extended. It is sufficient for purposes of plaintiffs’ motion to base the
decision on the procedural posture of this case.
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1994). The reasoning appears to be that “‘receipt,’ as measured by the statute, is through
either [] ‘service’ or [] ‘otherwise.’” Hardy v. Square D Co., 199 F.Supp.2d 676, 680 (N.D.
Ohio 2002); see also Moran v. Guardian Auto. Prods., Inc., 2005 WL 1308879, at *2 (N.D.
Ohio June 1, 2005). But if receipt in § 1446(b)(1) is read to mean actual receipt, not receipt
beginning sometime beforehand (e.g., receipt based on service calculated on the basis of
when a pleading or paper was mailed), there is no need to engraft extension periods on
§ 1446(b)(1). The Supreme Court has implicitly recognized that receipt means actual receipt,
not an earlier date that qualifies as such based on the date of service, by noting that a
“defendant’s period for removal will be no less than 30 days from service” but may
sometimes “be more than 30 days from service, depending on when the complaint is
received.” Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 348, 354 (1999) (emphasis
added).
Accordingly, the court holds that the 30-day removal period was triggered by Arpin’s
actual receipt of the citation and plaintiffs’ first amended petition via mail on October 16,
2012. The removal period therefore expired on November 15, 2012. Arpin did not remove
this case until November 16, 2012. The DerMargosians’ motion to remand the case to
county court must therefore be granted. See, e.g., Marshall v. Air Liquide-Big Three, Inc.,
2006 WL 286011, at *2 (E.D. La. Feb. 7, 2006) (“The thirty day period is mandatory, unless
the party seeking a remand waives that requirement.” (quoting York v. Horizon Fed. Sav. &
Loan Ass’n, 712 F. Supp. 85, 87 (E.D. La. 1989))).
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III
The DerMargosians also move for an award of attorney’s fees on the ground that
Arpin’s removal was not objectively reasonable. The court denies the motion.
“An order remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c).
“Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only
where the removing party lacked an objectively reasonable basis for seeking removal.
Conversely, when an objectively reasonable basis exists, fees should be denied.” In re
Enable Commerce, Inc., 256 F.R.D. 527, 533 n.14 (N.D. Tex. 2009) (Fitzwater, C.J.)
(quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005)). It is apparent from
the analysis above that the Supreme Court and the Fifth Circuit have not definitely resolved
the interrelationship between § 1446(b)(1) and Rule 6(d). Although the majority of lower
court cases reject Arpin’s position, the court is unable to say that removal was objectively
unreasonable under the circumstances.
*
*
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Accordingly, the court grants plaintiffs’ December 4, 2012 motion to remand. This
action is remanded to Dallas County Court at Law No. 1 of Dallas County, Texas. The clerk
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shall effect the remand in accordance with the usual procedure.
SO ORDERED.
March 4, 2013.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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