Legal Memorandum: Notice of Removal

Issue: When does the 30-day period in which a party is permitted to seek removal begin to run?

Area of Law: Litigation & Procedure
Keywords: Notice of removal; 30-day period
Jurisdiction: Federal
Cited Cases: 935 F.2d 1282; 969 F.2d 160; 986 F.2d 48
Cited Statutes: 28 U.S.C. § 1446(b)
Date: 11/01/2007

The court recently had the opportunity to address removal issues in Lovern v. General Motors Corp., 121 F.3d 160, 1997 Lexis 21469 (4th Cir. 1997).  In Lovern, the court was called upon to address the issue of when the thirty day period for removal begins to run.  The initial pleading in Lovern, was filed in state court and served on General Motors on October 21, 1994.  1997 Lexis 21469 at *2.  The complaint, on its face, did not establish the citizenship of the plaintiff, which would have permitted General Motors to determine if diversity jurisdiction existed.  Id.  In January of 1995, the defendant learned of the plaintiff’s citizenship in two ways:  by a copy of a police report and by the plaintiff’s answers to the defendant’s interrogatories. Lovern, 1997 Lexis 21469 at *3.  The defendant filed a notice of removal, asserting diversity jurisdiction, within 30 days of receiving this information but more than thirty days after service of the complaint.  Id.  Just as in the instant case, the plaintiff in Lovern then moved to remand the case on the ground that notice of removal was untimely.  Id.

The court, in reaching its decision in Lovern, clearly relied on decisions of the Third and Fifth Circuits, specifically Foster v. Mutual Fire, Marine & Inland Insurance Co., 986 F.2d 48 (3rd Cir. 1993) and Defendant v. Powermatic, Inc., 969 F.2d 160 (5th Cir. 1992).  Lovern, 1997 Lexis 21469 at *8.  In so doing, the […]

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