Countryman v. Farmers Ins. Exchange, No. 11–1066, 2011 WL 1760196 (10th Cir. Colo. May 10, 2011).
As a matter of first impression, the Court of Appeals for the Tenth Circuit held that failure to attach the co-defendant’s summons to a joint notice of removal constituted a de minimis procedural defect that did not necessitate remand to state court, and that the de minimis procedural defect was curable, either before or after expiration of 30 day removal period.
The plaintiff, Lawrence Countryman, filed a putative class action in the state court of Colorado, alleging among other things that the defendants, Farmers Insurance Exchange and Mid–Century Insurance Company, violated Colorado insurance statutes and breached their contracts by refusing to pay reasonable and necessary medical expenses on automobile insurance policies.
Within the thirty-day removal period, the defendants filed a joint notice of removal of the action to federal district court pursuant to the CAFA, 28 U.S.C. §§1332(d). The defendants’ joint notice of removal contained ‘a copy of all process, pleadings, and orders’ served on them, except the summons served on Mid–Century Insurance.
The plaintiff filed a motion to remand the action to state court, arguing that the joint notice of removal was defective because of the absence of a copy of the summons served on Mid–Century Insurance.
Shortly after expiration of the thirty-day removal period, the defendants supplemented their original and timely joint notice of removal to include a copy of the summons served on Mid–Century Insurance.
The district court, however, granted the plaintiff’s motion to remand concluding that failure to attach summons constituted a defect in removal procedure under 28 U.S.C. §1446(a). (Editors’ Note: See the CAFA Law Blog analysis of the district court decision in Countryman posted on January 14, 2011).
Upon the defendants’ appeal, the Tenth Circuit vacated the order. The plaintiff argued that omission of Mid–Century Insurance’s summons was not curable, and that this procedural defect was timely raised. As a matter of first impression in the Tenth Circuit, it held that the defendants’ failure to attach a co-defendant’s summons to the joint notice of removal constituted a de minimis procedural defect that did not necessitate remand of the case to state court. The Tenth Circuit maintained that this de minimis procedural defect was curable, either before or after expiration of the thirty-day removal period.
The Tenth Circuit observed that there is an ostensible split of authority as to whether a procedural defect in a notice of removal requires remand to state court. The minority view taken by some district courts is that a removing party’s failure to attach the required state court papers to a notice of removal is a fatal defect that necessitates remand. The majority view, particularly, Cook v. Randolph Cnty., 573 F.3d 1143, 1150 (11th Cir.2009); Riehl v. Nat’l Mut. Ins. Co., 374 F.2d 739, 742 (7th Cir.1967); Covington v. Indemnity Ins. Co., 251 F.2d 930, 932–33 (5th Cir.1958); Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 (11th Cir.1985); Yellow Transp., Inc. v. Apex Digital, Inc., 406 F. Supp 2d 1213, 1219 (D.Kan.2005); and 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3733 (2010) opined that the omission of a summons from the defendants’ joint notice of removal was an inadvertent, minor procedural defect that was curable, either before or after expiration of the thirty-day removal period, and not a jurisdictional defect necessitating remand.
Agreeing with the majority view, the Tenth Circuit found that the defendants supplemented their joint notice of removal to include the summons, and the plaintiff was not prejudiced by the omission. Nor was the district court’s ability to proceed with the case materially impaired
Accordingly, the Tenth Circuit vacated the order and remanded to the case to the district court for further proceedings.