Hargrave v. District of Columbia ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
WILLIAM L. HARGRAVE, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-353 (RWR)
)
DISTRICT OF COLUMBIA et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
The defendants removed this case from the Superior Court of
the District of Columbia on February 20, 2009. The notice of
removal fails to recite the date on which the defendants received
the complaint, but the proofs of service the defendants attached
to their notice show service of the complaint upon two defendants
on January 7, 2009 and the third defendant on January 16, 2009.
Because the notice did not appear to have been filed within the
required thirty-day period after the receipt of the complaint,
the defendants were ordered to show cause why the case should not
be remanded to Superior Court.
One defendant, Officer Vieth, responded to the Order to show
cause to explain this apparent defect in the removal procedure.
The other two defendants did not. Vieth asked that the case not
be remanded to Superior Court and moved under Fed. R. Civ. P.
6(b) for an enlargement of the time required to file the notice
of removal. Rule 6(b) permits a court for good cause to extend a
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deadline after its expiration if the party’s tardiness was due to
excusable neglect. Vieth claims that he did not timely remove
the case because he concluded that when the Superior Court judge
ordered that a hearing would be held in the case on February 27,
2009 if the removal was not completed by that date, he had until
February 27, 2009 to file a notice of removal.
The language of the removal statute, 28 U.S.C. § 1446, is
unambiguous and reads in pertinent part:
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 . . . 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.
28 U.S.C. § 1446(b). A mistake in construing plain language of
law does not establish excusable neglect or good cause for
failure to timely act. See Parker v. Bagley, 543 F.3d 859, 862
n.1 (6th Cir. 2008); Webster v. Pacesetter, Inc., 270 F. Supp. 2d
9, 11-12, 14 (D.D.C. 2003). Nor was Vieth’s conclusion either
“neglect” or “excusable.” Federal courts rigorously enforce the
thirty-day filing requirement, and where a defendant acknowledges
that he failed to file his notice of removal within the 30-day
period, remand is proper. See Somlyo v. J. Lu-Rob Enterprises,
Inc., 932 F.2d 1043, 1046 (2d Cir. 1991); FHC Options v. Security
Life Ins. Co. of America, 993 F. Supp. 378, 380 (E.D. Va. 1998)
(stating that even thought the “overwhelming authority from other
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circuits” held that the thirty-day time limit is not
jurisdictional, “failure to comply with the [time] limit is
grounds for immediately remanding a removed case to state
court”); Yazdani v. ACCESS ATM, 457 F. Supp. 2d 36, 37 (D.D.C.
2006) (stating that because “the parties [did] not dispute the
fact that defendant’s removal notice to the District Court was
untimely,” remand was proper and the only issue left to determine
was “whether or not the reimbursement of plaintiff's attorneys’
fees and costs [was] warranted”). Because the notice of removal
was filed more than thirty days beyond the service of the
complaint upon the defendants, and because defendants do not show
good cause for their failure to timely remove this action, this
action will be remanded to the Superior Court of the District of
Columbia. An appropriate order accompanies this memorandum
opinion.
SIGNED this 13th day of March, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge