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Sturgis v. Lloyd

March 19, 2010

URIAN RAMON STURGIS, SR., PLAINTIFF,
v.
DEMARCO LLOYD, PATRICE KELLY, AND CHECKER/RALLY RESTAURANT, DEFENDANTS.



The opinion of the court was delivered by: Hon. Marianne O. Battani

OPINION AND ORDER GRANTING MOTION TO REMAND CASE

This matter is before the Court on Plaintiff Urian R. Sturgis, Sr.'s Motion to Remand Case (Doc. No. 4). The Court has reviewed the pleadings and finds oral argument will not aid in the resolution of this motion. See E. D. Mich. LR 7.1(e)(2). For the reasons that follow, the Court GRANTS the request to remand this matter.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed suit in Wayne County Circuit Court against Defendant Demarco Lloyd, Patrice Kelly, and Checkers/Rally Restaurant on December 8, 2009. According to Checkers/Rally's Restaurant ("Checkers"), it was served on December 14, 2009. It removed this matter on January 11, 2010.

On January 19, 2010, Plaintiff filed a motion to remand this matter based on the untimeliness of Checker's notice of removal. Plaintiff disputes the date of service. See Pl.'s Ex. B. He claims that the December 9, 2009, summons and complaint were delivered on December 12, 2009.

II. STANDARD OF REVIEW

A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441. Federal courts have original over primarily two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75,000.00, exclusive of interests and costs pursuant to 28 U.S.C. § 1332(a).

The party seeking removal bears the burden of establishing federal jurisdiction. In reviewing a motion to remand, a court must be mindful of the scope of the federal jurisdictional statutes and the overriding constitutional limits to federal district court jurisdiction. Accordingly, a court construes removal statutes narrowly, resolving uncertainties in favor of remand. Her Majesty the Queen of Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989).

III. ANALYSIS

A. Timeliness

A notice of removal of a civil action "shall be filed within thirty days" after the defendant's receipt of the summons and complaint. 28 U.S.C. § 1446(b). Section 1447(c) requires a motion to remand based upon defects in the removal procedure to be filed within thirty days after the filing of the notice of removal. 28 U.S.C. § 1447(c)

Because Checkers was not served until December 14, 2009, it had 30 days from December 14, 1009, to remove this matter to federal court. See Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999) (noting that under the "removing defendant" rule, each "defendant has 30 days from the date of service [of the complaint upon that defendant] to remove the case to federal district court"). Accordingly, even if another defendant were served earlier than the removing defendant and the thirty-day removal period has passed, the earlier served defendant may consent to a later-served defendant's notice of removal. Therefore, the removal comports with the statutory time restriction. Because the Supreme Court has held that courts have a continuing duty to examine their own jurisdiction, this Court addresses whether it has subject matter jurisdiction over this dispute. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

B. Jurisdiction

Encompassed in the duty to assess subject matter jurisdiction is the requirement to dismiss sua sponte an action over which a court lacks jurisdiction. Id.; Page v. City of Southfield, 45 F.3d 128, 131 (6th Cir. 1995) (noting that remand is appropriate where it appears that the court lacks subject matter jurisdiction). To avoid remand, "a defendant [must] demonstrate that a district court would have original jurisdiction over a civil action." ...


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