Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

GREENSMITH CO. v. COM SYS.

August 26, 1992

GREENSMITH COMPANY, INC., and J.N. BEARDEN, III, Plaintiffs,
v.
COM SYSTEMS, INC., RESURGENS COMMUNICATIONS GROUP INC., and JOHN D. PHILLIPS, Defendants.



The opinion of the court was delivered by: DICKINSON R. DEBEVOISE

 DEBEVOISE, District Judge

 This cause of action was removed from the New Jersey State Courts on or about June 1, 1992. Plaintiffs contend that Defendants' Notice of Removal was not filed in a timely fashion; consequently, they move to remand. For the reasons set forth below, Plaintiffs' motion is granted.

 STATEMENT OF FACTS AND PROCEDURAL HISTORY

 Plaintiffs filed this suit in the Superior Court of New Jersey, Morris County on April 13, 1992. Plaintiffs maintain that Defendant John D. Phillips ("Phillips") was served with a summons and copy of the Complaint on April 27, 1992. Defendants contend that service upon Phillips was improper. Defendant Resurgens Communications Group, Inc. ("Resurgens") was served with a summons and copy of the Complaint on May 6, 1992 via its agent, Corporation Trust Company. The third Defendant, Comm Systems, Inc. ("Com Systems") was served on June 1, 1992.

 Defendants filed a Petition for Removal from state court on June 1, 1992. The Petition, filed in Defendant Resurgens name, stated that removal was made with the consent of Defendants Phillips and Com Systems. Pursuant to Defendants' Petition, the case was removed from the state court.

 DISCUSSION

 A. Removal

 The time limits governing removal of actions to federal court are stated in 28 U.S.C. § 1446(b):

 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

 Pursuant to this rule, removal must be made within 30 days, after receipt by the defendant, through service or otherwise, of a copy of the initial pleadings.

 Plaintiffs' motion raises two pivotal issues: (i) whether receipt of the pleadings is sufficient to trigger the 30 day time period established in 1446(b) or whether service is necessary to commence the 30 day limitation; and (ii) whether, in multi-defendant cases, receipt of the pleadings by the first defendant triggers the 30 day removal period provided in 1146(b) for all defendants. As noted by the parties in their respective briefs, the Third Circuit has not squarely addressed the first issue. The intent of the drafters, however, is clear. The statute provides that a notice of removal "shall be filed within thirty days after the receipt by the defendant, through service or otherwise," of a copy of the pleadings. The plain language of this rule is unequivocal: the thirty day limitation will begin to run after receipt of the pleadings. Receipt is not limited to service; rather, it is granted broader application. Accordingly, I conclude that service is not required under the rule. All that is required to trigger the thirty day statute of limitations is receipt of the pleadings. See North Jersey Sav. & Loan v. Fidelity & Deposit Co. of Maryland, 125 F.R.D. 96, 100 (D.N.J.1988) (relying upon Cooperman v. Board of Educ. of Hillside Township, 577 F.Supp. 52 (D.N.J.1983).

 In the instant case, it is undisputed that Phillips received a copy of Complaint on April 27, 1992 by certified mail. See Defendants' Memorandum in Opposition to Plaintiffs' Motion to Remand at 3. The time for removal, therefore, began to run on April 27, 1992.

 The second issue raised in this motion is also a novel one which has not been squarely addressed by the Third Circuit: whether, in multi-defendant cases, receipt of the pleadings by the first defendant triggers the 30 day ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.