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Novak v. Bank of New York Mellon Trust Co.

United States Court of Appeals, First Circuit

April 21, 2015

LAWRENCE P. NOVAK, Plaintiff, Appellant,
v.
THE BANK OF NEW YORK MELLON TRUST CO., NA., as Successor to J.P. Morgan Chase Bank, as Trustee, on Behalf of Mortgage Loan Trust 2004-2 Asset-Backed Certificates 2004-2 f/k/a the Bank of New York Trust Co., and SELECT PORTFOLIO SERVICING, INC., Defendants, Appellees

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Nathaniel M. Gorton, U.S. District Judge.

Lawrence P. Novak on brief, Pro se.

Peter F. Carr, II and Eckert Seamans Cherin & Mellott, LLC on brief for appellees.

Before Howard, Kayatta and Barron, Circuit Judges.

OPINION

Page 911

PER CURIAM.

This appeal requires us to resolve a single question: whether a defendant may seek to remove a state-court action to federal court before being formally served. Construing the relevant statute, 28 U.S.C. § 1446(b)(1), the Supreme Court has held that a defendant's statutory period to remove does not begin to run, and a defendant is not required to remove, until the defendant has been served. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). Plaintiff-Appellant Lawrence Novak contends, however, that service is so essential to removal that a defendant is precluded from filing a notice of removal until after formal service of process. Because the statutory text and legislative history indicate otherwise, however, we reject Novak's reading of the statute. Instead, we conclude that service is generally not a prerequisite for removal and that a defendant may remove a state-court action to federal court any time after the lawsuit is filed but before the statutorily-defined period for removal ends.[1]

Invoking diversity jurisdiction, Defendant-Appellee Select Portfolio Servicing removed this action from Massachusetts

Page 912

state court to the United States District Court for the District of Massachusetts. At the time of removal, Novak had not yet served any of the defendants in this action, including Select Portfolio Servicing. The district court denied Novak's motion to remand and dismissed the action pursuant to Federal Rule of Civil Procedure 12(b)(6). Novak now contends that removal was improper because Select Portfolio Servicing had not yet been formally served at the time that it sought to remove.[2]

In 28 U.S.C. § 1446(b)(1) Congress has set forth the period during which a defendant may remove a pending action from state to federal court. That statute specifies that:

The notice of removal of a civil action or proceeding shall be filed within 30 days after the 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, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1) (emphasis added). Congress thus created two alternative points at which to fix the defendant's deadline for removing: one 30 days following receipt of the initial pleading, and the other 30 days following service of process at a time that the initial pleading has been filed in state court. In doing so, Congress accounted for variations in state law regarding whether the complaint must be included with service of the summons, with the goal of making certain that defendants would have access to the complaint before being required to file a notice of removal. Murphy Bros., 526 U.S. at 351.

Although Novak asserts that removal is not permissible before a defendant has been served, we think it is clear that a defendant generally need not wait until formal receipt of service to remove. There is no indication that, in using the phrase " within 30 days after," Congress intended to prohibit a defendant from filing a notice of removal before having been formally served and before the 30-day clock has begun to run. Instead, the statute's text, as illuminated by the surrounding provisions, and the legislative history both indicate that ...


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