Opinion
No. C 01-4018 MJJ
January 17, 2002
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND
INTRODUCTION
In this Employee Retirement Income Security Act ("ERISA") action brought by plaintiff Jack Helmke, Jr. against defendants UnumProvident Corporation, Unum Life Insurance Company of America (collectively "Unum"), and Peugeot Motors of America, Inc. Long Term Disability Plan (the "Plan"), plaintiff moved to remand the action to the Sonoma County Superior Court. Having heard this matter on Tuesday, January 8, 2002, the Court granted plaintiffs motion. This order explains the Court's reasoning more fully.
FACTUAL BACKGROUND
Plaintiff is or was an employee of Peugeot Motors of America, Inc. ("Peugeot"), who became disabled on or about August 1986. (Compl. ¶¶ 5, 8.) As a Peugeot employee, plaintiff participated in the Plan, a long-term disability plan governed by ERISA, 29 U.S.C. § 1001, et seq. (Id. ¶ 5.) After becoming disabled, plaintiff applied for and received benefits from Unum, his insurer under the Plan. (Id. ¶¶ 8-9.) On or about July 2000, Unum informed plaintiff that it would make no further payments to plaintiff on the ground that he could perform an occupation other than his previous occupation. (Id. ¶ 10.) Plaintiff alleges that Unum disregarded evidence that he remains totally disabled, and brings this action for recovery of disability benefits against all defendants, and for breach of the covenant of good faith and fair dealing against Unum. Unum removed the action to this Court on October 25, 2001. The Plan did not join in or consent to Unum's removal.
ANALYSIS
Plaintiff urges the Court to remand this action to the Sonoma County Superior Court on the ground that Unum's notice of removal was defective because the Plan did not join in or consent to the removal. As plaintiff correctly notes, all defendants must generally join in a removal notice, and the removing party has the burden to explain the absence of any co-defendants. See 28 U.S.C. § 1446 (a); Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986); Prize Frize, Inc. v. Matrix. Inc., 167 F.3d 1261, 1266 (9th Cir. 1999). "[T]he notice of removal should expressly indicate why one or more defendants have not joined in the removal notice." Prize Frize, 167 F.3d at 1266 (quoting 16 Moore's Federal Practice § 107.11(d) (3d ed. 1997)). The requirement that all defendants must join the removal notice does not apply, however, where the non-joining defendant has not been served at the time the notice of removal is filed. Salveson v. Western States Bankcard Association, 731 F.2d 1423, 1429 (9th Cir. 1984) (superseded in part by statute as stated in Etheridge v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988)).
Unum argues that the Court should not consider plaintiffs motion because it was filed on November 26, 2001, thirty-two days after the notice of removal. Unum is correct that 28 U.S.C. § 1447(c) requires that a remand on procedural grounds be filed within 30 days of the removal notice. Here, however, the 30th day after Unum's October 25, 2001 notice of removal was Saturday, November 24, 2001. Rule 6(a) of the Federal Rules of Civil Procedure provides that where a deadline falls on a Saturday, Sunday, or holiday, the deadline is extended to the following court day. In this case, that day was Monday, November 26, 2001, the day plaintiff filed his motion to remand. Plaintiffs motion is, therefore, not untimely.
Here, plaintiff served the Plan by mailing a copy of the summons and complaint to the Secretary of the United States Department of Labor (the "Secretary") by certified mail on September 26, 2001, as prescribed by ERISA, 29 U.S.C. § 1132(d)(1). (Grey Decl. ¶ 4, Ex. C.) As noted above, Unum filed its notice of removal nearly a month later, on October 25, 2001. Unum nonetheless argues that the "unserved defendant" exception of Salveson excuses the absence of the Plan from the notice of removal because, although the Plan had been served, it had not actually received the complaint from the Secretary at the time the notice was filed, and did not even know of the complaint until it was notified by Unum in December of 2001. (Peugeot Decl. ¶¶ 1-2.) Unum points out that plaintiff did not file a proof of service regarding the Secretary until October 22, 2001, three days before Unum filed its notice of removal, and contends that this left it insufficient time to obtain the Plan's joinder.
ERISA provides that service of an employee benefit plan may be accomplished by this method, if the plan's summary plan description does not designate an individual as agent for the service of legal process. 29 U.S.C. § 1132(d)(1). Plaintiff's Summary Plan Description designates no such agent. (See Helmke Decl. Ex. A.)
Plaintiff contends that the Peugeot Declaration is not competent evidence because it is not the declaration of Peugeot Motors of America, Inc. Long Term Disability Plan, which is the benefit plan named as a defendant in this action, but rather is the declaration of Mark Bonanni, in-house counsel for plaintiffs former employer, Peugeot Motors of America, Inc., a separate legal entity. The Court need not decide this issue because, as set forth below, the facts attested to in the Peugeot Declaration are not dispositive of plaintiffs motion.
Unum cites cases purportedly holding that when a defendant is served through a statutory agent, the 30-day time limit for removal begins to run from the date of actual receipt of the complaint by the defendant, rather than from the date of perfected service. See Pilot Trading Co. v. Hartford Insurance Group, 946 F. Supp. 834 (D. Nev. 1996); Grecco v. Sanofee Winthrop Pharmaceuticals, No. C-96-3876 FMS, 1997 WL 68551 (N.D. Cal. Feb. 13, 1997). Pilot Trading did hold that, under the Nevada statutory agent law, time for removal starts running from the time of actual receipt of the complaint. 946 F. Supp. at 839. The court also noted however, that this holding "is narrow" Id., and that "the Ninth Circuit has never ruled on this question." Id. at 835. In Grecco, Judge Smith considered the question, but explicitly declined to rule on it. See Grecco, 1997 WL 68551 at *3 ("Because plaintiffs failed to file a timely motion to remand, the Court need not decide the issue of when the time for removal begins to run.").
In fact, the Ninth Circuit has never held that actual receipt of the complaint is required before the 30-day time limit for removal starts to run, and many courts have expressly rejected such a requirement. See, e.g., Williams v. Raley's Superstores, Inc., No. C-94-3867, 1995 WL 20462 at *2 (N.D. Cal. Jan. 13, 1995) ("[T]he date from which the removal period may begin is the date of perfected service."). Moreover, even if the removal time limit does, in fact, begin only once the defendant actually receives the complaint, Unum cites no authority to support extending this rule to allow removal where properly served defendants have not joined the notice of removal. Unum fails to cite a single case in which actual receipt of the complaint by a non-joining co-defendant is required before the removing party must satisfy the unanimity requirement.
Unum neither satisfied the unanimity requirement nor adequately explained the Plan's absence from the notice of removal. See Prize Frize, 167 F.3d at 1266 (holding that the removing party has the burden of explaining why a co-defendant has not joined in the removal notice). Unum's notice of removal stated only that "Defendant Unum Life Insurance Company of America is informed and believes that no other defendants have been served." In reality, the Plan had been properly served nearly a month earlier, proof of service had been filed, and Unum could have discovered these facts with a reasonable investigation before filing its notice of removal. See Parker v. California, No. C-98-4894, 1999 WL 111889 (N.D. Cal. Feb. 26, 1999) (remanding case where defendant "had the duty to determine before removal whether the other defendants had been served"); Caraffa v. City of Philadelphia, Civ. A. No. 87-2058, 1987 WL 16309 (E.D. Pa. Aug. 28, 1987) (remanding case where proof of service was filed one day prior to removal and defendants failed to fulfill their "duty to inquire.") Unum's "explanation" is, therefore, inadequate and fails to satisfy the requirements of Prize Frize. Accordingly, Unum's notice of removal was defective and this case must be remanded to the Sonoma County Superior Court.
CONCLUSION
For the reasons stated above, plaintiffs motion to remand is GRANTED, and the case is remanded to the Sonoma County Superior Court.