United States District Court, Northern District of Illinois, E.D
September 18, 1985
DIAL-IN, INC., AN ILLINOIS CORPORATION, PLAINTIFF,
THE ARO CORPORATION, A FOREIGN CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
On May 23, 1985, plaintiff Dial-In, Inc. ("Dial-In") filed this
breach of contract action against defendant The ARO Corporation
("ARO") in the Circuit Court of Cook County, Illinois. ARO was
also served with a summons and a copy of the complaint on that
day. On July 19, 1985, ARO filed a petition for removal of the
case to this Court. Claiming that the removal petition is
untimely, Dial-In has moved to remand the action to state court.
For the reasons set forth below, Dial-In's motion to remand is
Under 28 U.S.C. § 1446(b), a petition for removal must be
filed within thirty days after the defendant, through service
or otherwise, receives a copy of the initial pleading setting
forth the plaintiff's claim for relief. Dial-In argues that ARO
has failed to act within this time limit, waiting almost sixty
days to file its removal petition.
ARO, on the other hand, contends that the May 23, 1985 service
of Dial-In's complaint was fatally defective in that it failed to
include a full copy of the contract on which Dial-In's suit is
based, as required by Ill.Rev.Stat. ch. 110, ¶ 2-606. Indeed,
although the copy of the complaint filed in state court included
a full copy of the parties' contract, the service copy was
missing two pages (the second and the last) of the four-page
document. ARO argues that the thirty-day period for removal did
not begin to run until July 15, 1985, when ARO informed Dial-In
of the missing pages and Dial-In supplied them to ARO, or at
least until June 19, 1985, when ARO filed its general appearance
in state court. ARO also points out that on June 19, 1985, the
parties filed a stipulation giving ARO until July 19, 1985, to
answer or otherwise plead to Dial-In's complaint.
Dial-In responds initially by arguing that the failure to
attach a complete copy of the parties' contract to the service
copy of the complaint was not a fatal defect — it did not in any
way impair the jurisdiction of the state court over ARO's person.
Ill.Rev.Stat. ch. 110A, ¶ 104(d); Hubbartt v. Frank,
36 Ill. App.3d 529, 344 N.E.2d 496, 499 (5th Dist. 1976).
More to the point is Dial-In's assertion that ARO had been
effectively notified of the nature of the suit and the contract
in question on May 23, 1985. Service of process under state law
does not control removal under 28 U.S.C. § 1446. Tyler v.
Prudential Insurance Co. of America, 524 F. Supp. 1211, 1213
(W.D.Pa. 1981); Perimeter Lighting, Inc. v. Karlton, 456 F. Supp. 355,
359 (N.D.Ga. 1978). Rather, "[a]ll that is required is that
the defendant receives, through service or otherwise, a copy of
an `initial pleading' from which the defendant can ascertain that
the case is one which is or has become removable." Tyler, 524
F. Supp. at 1213, citing International Equity Corp. v. Pepper &
Tanner, Inc., 323 F. Supp. 1107, 1109 (E.D.Pa. 1971); see also
Mielke v. Allstate Ins. Co., 472 F. Supp. 851, 853 (E.D.Mich.
1979); Perimeter, 456 F. Supp. at 358. If ARO could have
intelligently determined removability from the papers it received
with the May 23 summons, then the thirty-day statutory period
began to run on that date.
We agree with Dial-In that the papers served on ARO on May 23,
even with two pages of the contract missing, did in
fact reveal that the case might be removed to federal court. This
Court could exercise subject matter jurisdiction in this case
only by virtue of the parties' diversity of citizenship, pursuant
to 28 U.S.C. § 1332(a). The initial pleading which ARO received
on May 23 quite clearly alleged that the parties are citizens of
different states and that the amount in controversy exceeds
$10,000.*fn1 Thus, ARO could have determined from the outset
that this action was removable, and the thirty-day period
established in § 1446(b) began to run on May 23. Consequently,
ARO's July 19 petition for removal is untimely.
The fact that ARO filed a general appearance on June 19 is
irrelevant to the question of removability. If anything, ARO's
appearance constituted a waiver of any objections it may have
had to the May 23 service of process. E.g., Gutow v. Cooper,
82 Ill. App.3d 534, 37 Ill.Dec. 850, 402 N.E.2d 852 (1st Dist. 1980);
Zvonarits v. Vollen, 64 Ill.App.3d 958, 21 Ill.Dec. 724,
382 N.E.2d 18 (1st Dist. 1978).*fn2 But as we have already noted,
service of process under state law is distinct from, and does not
govern, removal under § 1446.
Also irrelevant is the stipulation of the parties to allow ARO
to answer or otherwise plead to Dial-In's complaint until July
19. The thirty-day period set forth in § 1446(b) is mandatory and
cannot be extended by consent of the parties or by court orders.
E.g., Diaz v. Swiss Chalet, 525 F. Supp. 247, 250 (D.P.R. 1981);
Tyler, 524 F. Supp. at 1213; Crompton v. Park Ward Motors, Inc.,
477 F. Supp. 699, 701 (E.D.Pa. 1979); Perrin v. Walker,
385 F. Supp. 945, 948 (E.D.Ill. 1974); Transport Indemnity Co. v.
Financial Trust Co., 339 F. Supp. 405, 407 (C.D.Cal. 1972).
Therefore, the parties' stipulation has no effect on the
timeliness of ARO's removal petition.
In sum, ARO's petition for removal is untimely, as it was not
filed within thirty days of the May 23, 1985 service of summons
and complaint. Because the case was improperly removed from state
court — though without any apparent bad faith — ARO must pay
Dial-In the costs, but not the attorney's fees, the latter
incurred in opposing removal.*fn3 28 U.S.C. § 1446(d);
Zoyoipoulos v. Palombo, 584 F. Supp. 867 (D.Colo. 1984); Brown &
Sharp Mfg. Co. v. All Individual Members of Lodges 1088 and 1142
of District No. 64 of the Int'l Ass'n of Machinists and Aerospace
Workers, AFL-CIO, 535 F. Supp. 167, 172 (D.R.I. 1982).
Accordingly, Dial-In's motion to remand is granted. It is so