Failure to Attach Required State Court Papers to Notice of Removal = De Minimis Procedural Defect Not Requiring Remand — Case Law Split

From Countryman v. Farmers Ins. Exch., 2011 U.S. App. LEXIS 9499 (10th Cir. May 10, 2011):

Defendants-Appellants Farmers Insurance Exchange ("Farmers Insurance") and Mid-Century Insurance Company ("Mid-Century Insurance") removed a putative class action from state court to federal district court. Upon motion of Plaintiff-Appellee, Lawrence Countryman, the federal district court remanded the action to state court based on a procedural defect in Defendants' joint notice of removal. ***

On April 7, 2010, a summons and complaint were served on each Defendant. On May 7, 2010, within the thirty-day removal period, Defendants filed a joint notice of removal of the action to federal district court pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. §§ 1332(d), 1453. Defendants' joint notice of removal contained "a copy of all process, pleadings, and orders" served on Defendant Farmers Insurance and "a copy of all process, pleadings, and orders" served on Defendant Mid-Century Insurance except for the summons. 28 U.S.C. § 1446(a). On June 4, 2010, Plaintiff filed a motion to remand the action to state court, arguing that the joint notice of removal was defective because of the absence of a copy of the summons served on co-Defendant Mid-Century Insurance. Shortly after expiration of the thirty-day removal period, Defendants supplemented their original and timely joint notice of removal to include a copy of the summons served on co-Defendant Mid-Century Insurance. ***

As a matter of first impression in this circuit, we hold that Defendants' failure to attach a co-Defendant's summons to the joint notice of removal constituted a de minimis procedural defect that did not necessitate remand of the case to state court. We further hold that this de minimis procedural defect was curable, either before or after expiration of the thirty-day removal period.

The statute governing procedures for removal, 28 U.S.C. § 1446(a), provides that:

A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and 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 or defendants in such action.

There is an ostensible split of authority as to whether a procedural defect in a notice of removal requires remand to state court.

The minority view taken by some district courts is that a removing party's failure to attached the required state court papers to a notice of removal is a fatal defect that necessitates remand. Supporters of this view, like the Plaintiff here, argue that the unequivocal language of § 1446(a) must be adhered to strictly.

Footnote 1. See, e.g., Transfirst, LLC v. Norris, No. 10-cv-02063, 2010 WL 4736824, at *2 (D. Colo. Nov. 16, 2010) (unpublished) (case remanded as procedurally defective under § 1446(a) because removing parties failed to attach a summons to notice to removal; court noted that even if "such a remand is merely discretionary," in this instance it would exercise its discretion to remand); Day Imaging, Inc. v. Color Labs Enterps., LLC, No. 09-cv-02123, 2009 WL 4884274, at *2-3 (D. Colo. Dec. 11, 2009) (unpublished) (listing cases).

The majority view is that a removing party's failure to attach[] the required state court papers to a notice of removal is a mere procedural defect that is curable. Defendants rely on this viewpoint. See, e.g., Cook v. Randolph Cnty., 573 F.3d 1143, 1150 (11th Cir. 2009) (removing party's failure to include all state court pleadings and process with notice of removal was "procedurally incorrect" but was not a "jurisdictional defect"); Riehl v. Nat'l Mut. Ins. Co., 374 F.2d 739, 742 (7th Cir. 1967) (removing party's failure to include state court complaint with notice of removal did not deprive district court of jurisdiction because "the omission was but a minor irregularity of no consequence" and "[t]o permit this minor irregularity to defeat the District Court's jurisdiction would be to elevate form over substance"); Covington v. Indemnity Ins. Co., 251 F.2d 930, 932-33 (5th Cir. 1958) (removing party's failure to include "a copy of all process, pleadings and orders served upon him" was a mere procedural defect, and not a jurisdictional defect necessitating remand, and that missing state court papers could be supplied later); see also 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3733 (2010) ("The failure to conform to these procedural rules is not a jurisdictional defect, and both the failure to file all the state court papers or to provide the Rule 11 signature are curable in the federal court if there is a motion to remand.") (footnotes omitted); Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 (11th Cir. 1985) (noting that failure to the failure to file papers required by the removal statute may be remedied); Yellow Transp., Inc. v. Apex Digital, Inc., 406 F. Supp 2d 1213, 1219 (D. Kan. 2005) (reaching same result where defendant inadvertently did not attach state court summons).

We agree with the majority view. The omission of a summons from Defendants' joint notice of removal was an inadvertent, minor procedural defect that was curable, either before or after expiration of the thirty-day removal period. Defendants supplemented their joint notice of removal to include the summons, and Plaintiff was not prejudiced by the omission. Nor was the district court's ability to proceed with the case materially impaired.

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