When faced with a motion to remand, the party who removed the action has the responsibility of establishing the propriety of removal. Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992); Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied 498 U.S. 1085, 111 S. Ct. 959, 112 L. Ed. 2d 1046 (1991); Steel Valley Author. v. Union Switch & Signal Div., 809 F.2d 1006, 1012 n.6 (3d Cir. 1987), cert. dismissed, 484 U.S. 1021, 108 S. Ct. 739, 98 L. Ed. 2d 756 (1988); Bishop v. General Motors Corp., 925 F. Supp. 294, 297 (D.N.J. 1996). Removal is a statutory right and, therefore, must be construed in favor of the non-removing party. Id. Any doubts about the existence of federal jurisdiction must be resolved in favor of remand. Battoff, 977 F.2d at 851; Boyer, 913 F.2d at 111; Bishop, 925 F. Supp. at 297. While the thirty day time period in which to remove is not jurisdictional, it is a strictly applied rule of procedure that may not be extended by the court. Torres v. AIG Claim Serv., Inc., 957 F. Supp. 1271, 1273 (S.D. Fla. 1997); Liebig v. DeJoy, 814 F. Supp. 1074, 1076 (M.D. Fla. 1993).
Plaintiff argues that Burks's time to remove began to run when the copy of the Complaint was faxed to Condon & Forsyth. Plaintiff contends Burks received the Complaint "through service or otherwise" on October 8, 1997, and, therefore, he was on notice of a removable claim from that date. Defendants, however, disagree and argue that because Condon & Forsyth was not permitted to accept service, the time period did not begin to run until Burks received the Complaint on October 20, 1997.
The federal courts are divided over whether the phrase "through service or otherwise" means that delivery of the complaint before service of process has been effected begins the thirty day period for removal. See Torres, 957 F. Supp. at 1273. The "service rule" line of cases holds that only proper service upon the defendants triggers the thirty day removal period. See, e.g., Bullard v. American Airlines, Inc., 929 F. Supp. 1284 (W.D. Mo. 1996); City Nat. Bank v. Group Data Serv., 908 F. Supp. 896 (N.D. Ala. 1995); Apache Nitrogen Prod., Inc. v. Harbor Ins. Co., 145 F.R.D. 674 (D. Ariz. 1993); Marion Corp. v. Lloyds Bank, PLC, 738 F. Supp. 1377 (S.D. Ala. 1990); Goodyear Tire & Rubber Co. v. Fuji Photo Film Co., Ltd., 645 F. Supp. 37 (S.D. Fla. 1986); Hunter v. American Express Travel Related Serv., 643 F. Supp. 168 (S.D. Miss. 1986); Thomason v. Republic Ins. Co., 630 F. Supp. 331 (E.D. Cal. 1986); Love v. State Farm Mut. Auto. Ins. Co., 542 F. Supp. 65 (N.D. Ga. 1982). The "receipt rule" line of cases holds that the language "or otherwise" means that perfect service is not required to put the defendants on notice of the possibility of a removable issue. See, e.g., Tech Hills II Assoc. v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963, 967 (6th Cir. 1993); Walters v. Grow Group, Inc., 907 F. Supp. 1030 (S.D. Tex. 1995); Shoemaker v. GAF Corp., 814 F. Supp. 495 (W.D. Va. 1993); Kerr v. Holland-America-Line Westours, Inc., 794 F. Supp. 207 (E.D. Mich. 1992); Lindley v. DePriest, 755 F. Supp. 1020 (S.D. Fla. 1991); IMCO USA, Inc. v. Title Ins. Co., 729 F. Supp. 1322 (M.D. Fla. 1990); North Jersey Sav. & Loan Ass'n v. Fidelity and Deposit Co., 125 F.R.D. 96 (D.N.J. 1988); Tyler v. Prudential Ins. Co., 524 F. Supp. 1211 (W.D. Pa. 1981). The District of New Jersey is clearly a "receipt rule" jurisdiction. See North Jersey, 125 F.R.D. at 98-99.
This district's liberal reading of "through service or otherwise," however, does not come into play in the instant case. The statute provides that "receipt by the defendant, through service or otherwise" starts the thirty day removal period. 28 U.S.C. § 1446(b). There is no evidence in the record of this case to show that Burks had received a copy of the complaint prior to October 20, 1997. Although North Jersey stands for the proposition that the thirty day period begins to run when the defendant's attorney receives even a courtesy copy of an unfiled complaint, that case is distinguishable from the present situation. In North Jersey, the plaintiff's attorney forwarded a true copy of the then unfiled complaint to defendant's attorney on January 22, 1988. 125 F.R.D. at 97. The actual complaint was filed with the New Jersey Superior Court on January 22, 1988, and was properly served upon defendant's attorney on February 16, 1988. Id. On March 11, 1988, over forty days after the complaint was filed and twenty-three days after being served, defendant removed the action to federal court. Id. at 98. Plaintiff moved to remand the action for failure to execute removal within thirty days. Id. Plaintiff argued that the thirty day period was triggered when defendant's attorney received a "courtesy copy" of the complaint. Id. The court, agreeing with the plaintiff, remanded the action as untimely. Id.
The case at bar, however, is factually different from North Jersey. In North Jersey, the attorney who accepted the courtesy copy of the complaint and who was later served with the filed copy was acting as an agent of the defendant. In the present case, Condon & Forsyth was not retained to represent Burks in this litigation and specifically told Plaintiff that they were not authorized to accept service.
The record before the Court shows only that Burks received a copy of the Complaint on October 20, 1997.
This Court refuses to hold that, as a matter of law, the "receipt of a courtesy copy of a complaint by counsel retained by a defendant in one [matter] starts the removal period running in a subsequent litigation at a point when [that] counsel has not been retained by defendant for the subsequent [action]" or is not authorized by the client to accept service. Torres, 957 F. Supp. at 1274. The removal statute specifically states that the thirty day removal period is triggered when the defendant receives the initial pleading "by service or otherwise." 28 U.S.C. § 1446(b). Because Condon & Forsyth was not authorized to accept service on behalf of Burks, he did not "receive" the pleading until October 20, 1997. Accordingly, the notice of removal dated November 18, 1997, was timely as it was filed within thirty days of service upon Burks.
For the reasons set forth above, Plaintiff's motion to remand this action to the New Jersey Superior Court, Law Division, will be denied. An appropriate order will issue.
Dated: January 15, 1998.
STANLEY R. CHESLER, U.S.M.J.
CHESLER, MAGISTRATE JUDGE
This matter comes before the Court on the motion of Plaintiff for remand to the New Jersey Superior Court, Law Division. Plaintiff's motion was referred to the undersigned by the Honorable John C. Lifland, U.S.D.J. Oral argument was heard on January 12, 1998; and consistent with the Court's opinion of even date;
IT IS, therefore, on this 15th day of January, 1998, hereby
ORDERED that Plaintiff's motion to remand the above captioned action to the New Jersey Superior Court, Law Division, be and hereby is DENIED.
STANLEY R. CHESLER, U.S.M.J.