and cases cited there, referring to the "showing of cause to justify an extension of the section 1446(b) time requirement [as] rarely found, in keeping with the practice of construing the removal statutes in favor of remand" (614 F. Supp. at 1169) and to "the stringent requirements for a showing of cause" (id.).
This Court is of course aware of the recent opinion by its esteemed colleague Honorable James Moran in Leith v. Lufthansa German Airlines, 793 F. Supp. 808, 810-11 (N.D. Ill. 1992), finding that a notice of removal on the 31st day after service of process (just one day late) would be excused under Section 1441(d). Leaving aside the question whether the result in Leith was justified under all of the circumstances, this Court respectfully disagrees with what appears to be the approach suggested by Chief Judge Moran, under which the burden seems to have been shifted to the plaintiff to show why the case should not go back to the state court, rather than the burden being imposed where Congress placed it--on the foreign state to show real "cause." In any case, however, even Leith appears to acknowledge that the extended responsive pleading time that is allowed to a foreign state is not of itself "cause" for enlarging the time limitation for removal (793 F. Supp. at 811 n.4).
For the reasons expressed in this opinion, if any additional claimed "cause" for Alitalia's tardy removal assertedly exists, Alitalia's counsel is ordered to file an appropriate explanatory submission to that effect in this Court's chambers on or before December 27, 1993. If no such filing is made, this Court will assume that the only claimed cause for the late removal is Alitalia's statutory right to a longer responsive pleading timetable.
It should of course be emphasized that this Court recognizes that the problem identified in this opinion is nonjurisdictional, so that it does not trigger operation of the mandatory remand under Section 1447(c). It may well be that Ponce and his counsel are content to have the action remain here, in which event this Court will be pleased to entertain it. In that respect Section 1447(c) requires that any "motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a)"--in this instance on or before January 7, 1994. If Ponce elects to file such a motion in this Court's chambers on or before the December 27 due date for Alitalia's submission, this Court will take appropriate action based on both sides' filings. If no such motion is filed by Ponce by that date, this Court will of course wait out the 30-day time period provided by Section 1447(c) before determining what action if any is appropriate.
Milton I. Shadur
Senior United States District Judge
Date: December 9, 1993