Summary
remanding action when notice of removal was filed thirty-one days after service of process
Summary of this case from Lennon v. MartinezOpinion
No. 83-K-191.
February 9, 1983.
Holme Roberts Owen, Colorado Springs, Colo., for plaintiff.
Neil Quigley, Denver, Colo., for defendant.
ORDER OF REMAND
Plaintiff moves to remand this action removed to this court from the El Paso County Court on three grounds: (1) that the petition was filed more than 30 days after service of the summons and complaint on the defendant; (2) that defendant has failed to comply with the local rules of this court requiring a removal bond in the amount of $1,000.00; and (3) that there is no basis for removal of this action on the grounds of "exclusive federal jurisdiction." Because I find that the petition was untimely filed, I need not discuss the second and third grounds.
Title 28 U.S.C. § 1446 (b) says in pertinent part:
"The petition for removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based . . ."
As Judge Arraj said in Adams v. Western Steel Buildings, Inc., 296 F. Supp. 759, 761 (D.C.Colo. 1969):
"While compliance with the removal time limit is not a jurisdictional prerequisite the requirement is mandatory and may be insisted upon, absent waiver, by the party seeking remand." (citations omitted)
Defendant, R.E. Jones, was personally served a copy of the summons and complaint on January 4, 1983. The petition in this action was filed February 4, 1983, 31 days after service. Because plaintiff has refused to waive the 30-day requirement under the statute, it is
ORDERED that this action is remanded to the El Paso County District Court.