Petition for Writ of Certiorari — Allstate Insurance v. Bourland
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In The a
Supreme Court of the United States
October Term, 1988
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ALLSTATE INSURANCE COMPANY,
Petitioner, \
KEN BOURLAND, INDIVIDUALLY and as
ADMINISTRATOR OF THE ESTATE
OF JODI BOURLAND,
Respondent.
>
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ARKANSAS
>
*WILLIAM H. Sutton and
Kevin A. Crass
FRIDAY, ELDREDGE & CLARK
2000 First Commercial Building
Little Rock, Arkansas 72201
(501) 376-2011
Attorneys for Petitioner
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Whether a state court can, after remand of a case
from federal district court, enter default judgment against
a party that removed the case to federal district court and
filed a timely Answer in federal district court?
2. Whether a violation of due process occurs when a
state court holds a party in default who has timely
answered in federal court pursuant to the federal
removal statutes?
il
LIST OF PARTIES AND RULE 28.1 LIST
The parties to the proceedings below were the Peti-
tioner Allstate Insurance Company and the Respondent
Ken Bourland, Individually and as Administrator of the
Estate of Jodi Bourland, Deceased. Allstate Insurance
Company is wholly owned by Sears Roebuck and Co.
ili
TABLE OF CONTENTS
Page
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8 0 3
Damen Oe SOE CASE... 2... cece cess 4
REASONS FOR GRANTING THE WRIT........... 7
eee anc a ix scecascacscdceceavssess 20
iv
TABLE OF AUTHORITIES
Page
Cases:
Allen v. Hatchett, 91 Ga. App. 571, 86 S.E.2d 662
CRON bo Viwle ccc cnssacaceau sae eeanpaes keane vend a0 14
Ayres v. Wiswall, 112 U.S. 187, 5 S.Ct. 90, 28 L.Ed.
Ge CUBED cndcccccdsvisvasusegaavesewasuseses 15, 16
Barrett v. Southern Railway Co., 68 F.R.D. 413 (D.C.
fsa. Dry re rer errs crea nr root yar errr 11
Berberian v. Gibney, 514 F.2d 790 (1st Cir. 1975)...... 12
Brock v. North Carolina, 344 U.S. 424, 427, 97 L.Ed.
456, 549, 73 S.Ct. 349 (1953) ... 2... cece ween ee secee 19
Carnagie Mellon University v. Cohill, 484 U.S. __
98 L.Ed.2d 720, 108 S.Ct. ___ (1988).............--. 11
Dauenhauer v. Supreme Court, 307 P.2d 724 (Calif.
fe TS ar Pere rE re fy yr rrr errr Tre re 14
Edward Hansen, Inc. v. Kirney P.O. Associates, 166
N.J. 161, 399 A.2d 319 (1979) .............-.-- 14, 15
General Electric Credit Corp. v. Smith, 484 So.2d 75
| Perera rem pery rr rrr ey rts te Pee 14
Grubbs v. General Electric Credit Corp., 405 U.S. 699,
31 L.Ed.2d 612, 92 S.Ct. 1344 (1972)............... 11
Hornung v. Master Tank & Welding Co., 151 F.Supp.
SOD UE. TE TR nck ck ccc asc aseweseersccesses 9
In Re Gault, 387 U.S. 1, 20, 18 L.Ed.2d 527, 542, 87
S.C 42D (IDG)... oon ence cc cccccscccecssrceecssss 17
Kromer v. McNabb, 308 F.2d 863 (10th Cir. 1962) ..... 18
Lassiter v. Dept. of Social Services, 452 U.S. 18, 24,
68 L.Ed.2d 640, 648, 101 S.Ct. 2153 (1981)......... 19
Lucky Friday Silver-Lead Mines Co. v. Atlas Mining
Co., 395 P.2d 477 (S.Ct. Ida. 1964)...............-- 14
Vv
TABLE OF AUTHORITIES-Continued
Page
Manufacturers and Tradings Trust Co. v. Hartford
Accident and Indemnity Co., 434 F. Supp. 1053
GR REI ar dra peda sds Uas¥ see vcacas esac ns 9
Matthews v. Eldredge, 424 U.S. 319, 334, 47 L.Ed.2d
Sy, Be Oe Rs MONI a nisccvccncccsccvinsceses 19
Mayberry v. Pennsylvania, 400 U.S. 455, 465, 27
L.Ed.2d 532, 540, 91 S.Ct. 499 (1971).............. 17
Roberts v. New York, 295 U.S- 264, 277, 79 L.Ed.
ioe ithe an aah PEEL Pee PT OOO he eae eR Dera nD 18
Wolff v. McDonald, 418 U.S. 539, 558, 41 L.Ed.2d
ee A rr re ns en 17
STATUTES:
WE Es reece evs ecVsuwevswsbacada eee ecesen 5
oe SS I ere eet 2. 5, 7,9, 7
We Se 9655 Se ok cee do 50003084 chs eee 3, 9, 16
OTHER AUTHORITIES:
te E,W oon kbs ob adie nad sds derusd dass 7
Py a Ge I I oo so ies e de pow edoassieecasen 9
Ark. R. Civ. Proc. 55
No.
sa.
4
In The
Supreme Court of the United States
October Term, 1988
,%
vv
ALLSTATE INSURANCE COMPANY,
Petitioner,
KEN BOURLAND, INDIVIDUALLY and as
ADMINISTRATOR OF THE ESTATE
OF JODI BOURLAND,
Respondent.
oe
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ARKANSAS
>?
The Petitioner Allstate Insurance Company
respectfully prays that a Writ of Certiorari issue to review
the Judgment and Opinion of the Supreme Court of
Arkansas, entered in the above-entitled proceeding on
October 19, 1988. The Supreme Court of Arkansas denied
Petitioner’s Petition for Rehearing on November 7, 1988.
eo
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OPINIONS BELOW
The opinion of the Supreme Court of Arkansas is
reported at 296 Ark. 488, 758 S.W.2d 700, and is reprinted
in the Appendix hereto, p. 1a, infra.
The memorandum decision of the United States Dis-
trict Court for the Eastern District of Arkansas (Woods,
D.J.) has not been reported. It is reprinted in the Appen-
dix hereto, p. 14a, infra.
The Order and Judgment of the Circuit Court of
Craighead County, Arkansas were not reported. They are
reprinted in the Appendix hereto, pp. 16a and 18a, infra.
,
vv
JURISDICTION
On July 24, 1987, the United States District Court for
the Eastern District of Arkansas remanded this case to the
Circuit Court of Craighead County, Arkansas. On August
6, 1987, the Circuit Court of Craighead County, Arkansas
entered Default Judgment. On October 10, 1988, the
Supreme Court of Arkansas affirmed the Default Judg-
ment refusing to give effect to the timely filed Answer in
federal court. The Supreme Court of Arkansas denied the
Petition for Rehearing on November 7, 1988.
_ The jurisdiction of this Court to review the judgment
and the Opinion of the Supreme Court of Arkansas is
invoked under 28 U.S.C. § 1257(3).
>?
ee cet athe es
STATUTES INVOLVED
28 U.S.C. § 1446. Procedure for removal
(a) A defendant or defendants desiring to remove
any civil action or criminal prosecution from a State court
shall file in the district court of the United States for the
district and division within which such action is pending
a verified petition containing a short and plain statement
of the facts which entitle him or them to removal together
with a copy of all process, pleadings and orders served
upon him or them in such action.
(b) The petition for removal of a civil action or
proceeding shall be filed within thirty 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 thirty 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.
—
(e) Promptly after the filing of such petition for the
removal of a civil action and bond the defendant of
defendants shall give written notice thereof to all adverse
parties and shall file a copy of the petition with the clerk
of such State court, which shall effect the removal and the
State court shall proceed no further unless and until the
case is remanded.
28 U.S.C. § 1447. Procedure after removal generally.
(a) In any case removed from a State court, the
district court may issue all necessary orders and process
to bring before it all proper parties whether served by
process issued by the State court or otherwise.
(b) It may require the petitioner to file with its clerk
copies of all records and proceedings in such State court
or may cause the same to be brought before it by writ of
certiorari issued to such State court.
(c) If at any time before final judgment it appears
that the case was removed improvidently and without
jurisdiction, the district court shall remand the case, and
may order the payment of just costs. A certified copy of
the order of remand shall be mailed by its clerk the the
clerk of the State court. The State court may thereupon
proceed with such case.
(d) An order remanding a case to the State court
from which it was removed is not reviewable on appeal
or otherwise, except that an order remanding a case to
the State court from which it was removed pursuant to
section 1443 of this title shall be reviewable by appeal or
otherwise.
,™
vv
STATEMENT OF THE CASE
On April 22, 1987, the petitioner was sued by the
respondent in the Circuit Court of Craighead County,
Arkansas. On May 21, 1987, within the time allowed for
responsive pleadings and removal proceedings, peti-
tioner filed a Petition for Removal to federal court, Notice
of Removal, Bond and Answer with the United States
District Court for the Eastern District of Arkansas. Peti-
tioner had the right to remove the case to federal court
because complete diversity of citizenship existed and the
amount in controversy was in excess of $10,000. See 28
U.S.C. § 1332(a). Copies of these pleadings were mailed
to the respondent’s attorney, who does not dispute
receipt. Coptes of the Petition for Removal and the Notice
of Removal were placed in the mail to the Circuit Clerk
for Craighead County, Arkansas. This initial mailing to
the Circuit Clerk was not received by the Circuit Clerk as
the pleadings were not filed in the state court case until
later.
On or about June 16, 1987, petitioner’s counsel was
informed by respondent’s attorney that responsive plead-
ings were not on file with the state court. On June 17,
1987, copies of the Petition for Removal, Notice of
Removal, Bond and Answer were filed with the state
court clerk. On June 19, 1987, respondent filed a Motion
for Default Judgment in state court. On June 25, 1987
respondent filed a Motion in federal court seeking
remand of the case to state court for improper removal.
The basis of the Motion to Remand was that the removing
party did not comply with the requirements of 28 U.S.C.
§ 1446(e) to promptly file a copy of the Petition with the
clerk of the state court promptly after the filing of the
Petition for Removal. On June 24, 1987 the United States
District Court for the Eastern District of Arkansas entered
an Order remanding the case to the Circuit Court of
Craighead County, Arkansas. On August 6, 1987, the
Circuit Court of Craighead County, Arkansas entered an
Order granting respondent’s Motion for Default Judg-
ment. On September 4, 1987 Petitioner filed a Motion to
Set Aside Default Judgment which Motion was denied on
September 21, 1987.
For easy reference, the following is a chronology of
the filings in this case:
April 22, 1987
May 21, 1987
June 17, 1987
June 19, 1987
June 25, 1987
July 24, 1987
August 6, 1987
September 4, 1987
September 21, 1987
October 8, 1987
Complaint filed in state court
Answer filed in federal court
Removal papers filed in federal
court
Removal papers mailed to Circuit
Clerk and Plaintiff’s Attorney
Answer and Removal papers filed
in state court
Plaintiff’s Motion for Default
Judgment in state court
Plaintiff’s Motion for Remand
filed in federal court
Order of Remand entered by
federal court
Order of Default Judgment
entered by state court
Motion to Set Aside Default
Judgment
Order Denying Motion to Set
Aside Default Judgment
Judgment entered by state court
Petitioner appealed the entry of default judgment to
the Supreme Court of Arkansas. By decision dated Octo-
ber 10, 1988, the Supreme Court of Arkansas affirmed the
entry of default judgment. On November 7, 1988, the
Supreme Court of Arkansas denied Petitioner’s Petition
for Rehearing.
e
7
REASONS FOR GRANTING THE WRIT
I,
THE FAILURE OF THE STATE COURT TO
RECOGNIZE AND ACCEPT RESPONSIVE
PLEADINGS FILED IN FEDERAL COURT
DEFEATS A PARTY’S FEDERAL RIGHT TO
REMOVE A CASE TO FEDERAL COURT AND
THE PARTY’S FEDERAL RIGHT TO DEFEND
A COMPLAINT.
A state court defendant’s right to remove a case from
state court to federal court is based exclusively upon
federal statutes, rules and decisions. In particular, the
procedure for removal is found at 28 U.S.C. § 1446 which
provides that a defendant may remove a civil action
within thirty days after receipt by the defendant of a
copy of the initial pleading setting forth the claim for
relief. The statutes require the defendant to file a Petition
for Removal in the District Court of the United States for
the district and division within which the action is pend-
ing. The petition is to contain a short and plain statement
of the facts which entitled him to removal together with a
copy of all process, pleadings and orders served upon the
defendant.
In 28 U.S.C. § 1446(e), the removing party is required
to give written notice to the adverse parties and to file a
copy of the Petition with the clerk of the state court from
which the case is being removed. The statute does not
establish a specific deadline but merely requires that this
notice and filing be done “promptly after the filing of
such Petition for Removal.”
Federal Rule of Civil Procedure 81(c) establishes the
time in which a defendant/removing party must answer
ee
or file, in federal court, other responsive pleadings to the
initial Complaint. The Rule provides, in pertinent part,
that:
In a removed action in which the defendant has not
answered, the defendant shall answer or present the
other defenses or objections available under these
rules within 20 days after the receipt through service
or otherwise of a copy of the initial pleading setting
forth the claim for relief upon which the action or
proceeding is based, or within 20 days after the ser- iss
vice of summons upon such initial pleading, then
filed, or within 5 days after the filing of the Petition
for Removal, which ever period is longest.
While the rules contemplate that in some removed
cases the parties will have previously answered or
responded to the Complaint, there are no requirements in
the federal rules that a removing defendant file a respon-
sive pleading in state court prior to a removal of the case
to federal court.
The Petitioner removed this case from the Circuit
Court of Craighead County, Arkansas to the United
States District Court for the Eastern District of Arkansas.
The Petitioner, pursuant to the previously described
rules, timely filed a Petition for Removal, a Notice of
Removal, a Bond and an Answer with the District Court.
Petitioner’s counsel mailed a copy of the Notice of
Removal and Petition for Removal to the Clerk of the
Circuit Court of Craighead County, Arkansas but the
initial mailing was not received. Respondents’ counsel
received a copy of all the pleadings that were mailed to
him. Before any action was taken by the state court,
however, Petitioner filed with the state court clerk a copy
of the Petition for Removal, Notice of Removal and an
Answer which had been previously filed in federal court.
This filing was accomplished on the 26th day following
the filing of the Petition for Removal in federal court.
Despite this filing which completed removal of the case
to federal court, Petitioner was faced with a Motion for
Default Judgment in state court for failure to file respon-
sive pleadings within the 30 day period allowed by the
state rules. See Arkansas Rule of Civil Procedure 12.
During the pendency of the Motion for Default Judgment
in state court, Petitioner was confronted with a Motion to
Remand in the federal district court. The Motion to
Remand was based solely upon the notion that the Peti-
tioner had not filed a copy of the Petition for Removal
and Notice of Removal with the state court clerk in a
“prompt” manner as required by 28 U.S.C. § 1446(e). The
United States District Court granted the Petition for
Remand and ordered the case sent back to state court.
Under 28 U.S.C. § 1447(d), the Order was not reviewable
on appeal or otherwise in this case. As a result of the
non-appealable nature of an Order of Remand, lower
courts are not given guidance on what constitutes a
“prompt” filing under 28 U.S.C. § 1446(e). While the
district court herein concluded that 26 days was not
prompt, some courts have held that 14 day and 45 day
delays were not grounds for remand. See Hornung v.
Master Tank & Welding Co., 151 F. Supp. 169 (D.C. N.D.
1957); Manufacturers and Tradings Trust Co. v. Hartford
Accident and Indemnity Co., 434 F. Supp. 1053 (W.D. N.Y.
1977). The recognition by some courts that a delay should
not bar further proceedings is at least partially based
upon the notion that the sole purpose of the notice
requirement of 1446(e) is to give actual notice to the
10
adverse parties and the state court that the case has been
removed. Such a purpose was satisfied in this case.
Upon remand of this case to the state court, the state
court concluded that since no responsive pleadings were
filed in state court within the period allowed by the
Arkansas Rules of Civil Procedure, the Court was
required to enter default judgment pursuant to Arkansas
Rule of Civil Procedure 55. On appeal, the Supreme Court
of Arkansas was asked to require the lower court to give
effect to_the Answer which had been timely filed in
federal court prior to remand and the Supreme Court was
also asked to adopt a rule which would toll the period in
which a state court defendant must answer. The Court
was requested to toll the running of the deadline from the
date the Petition for Removal was filed until the case was
remanded to state court. In both instances, the Supreme
Court of Arkansas refused and affirmed the default judg-
ment. The Supreme Court of Arkansas recognized that a
change in the federal law in 1949 removed the risk of
default a party had previously borne when removing the
case to federal court if the state court filing requirements
were not met. Despite recognition of this change, the
Supreme Court of Arkansas made this risk a reality for
the Petitioner by affirming the default judgment. The
Supreme Court of Arkansas relied heavily upon its own
view of the federal removal statutes that removal is not
“effected” unless the removal papers are filed with the
state court. Further, the court stated, “We are certainly
not required by Federal law to give the Answer filed in
Federal Court the effect of meeting the filing deadline
required by our rule, so we look to our own policy.” The
11
opinion erroneously concluded removal was not “effect-
ed” herein.
As this Honorable Court recognized some time ago,
“While, of course, Texas is free to establish such rules of
practice for her own courts as she chooses, the removal
statute and decisions of this Court are intended to have
uniform nationwide applications.” Grubbs v. General Elec-
tric Credit Corp., 405 U.S. 699, 31 L.Ed.2d 612, 92 S.Ct.
1344 (1972). Further, the court determined in that deci-
sion that federal, not state, law governs all removal pro-
ceedings. See also Barrett v. Southern Railway Co., 68 F.R.D.
413 (D.C. S.C. 1975).
This Petition should be granted because federal dis-
trict courts and state courts need a uniform nationwide
rule in cases involving remand of a case from federal
court to state court. The need for a uniform rule is but-
tressed by the recent liberalization of a federal district
court’s discretion to remand cases to state court. See
Carnagie Mellon University v. Cohill, 484 U.S. __, 98
L.Ed.2d 720, 108 S.Ct. ____ (1988). (This Court concluded
that a federal district court has discretion under the doc-
trine of pendent jurisdiction to remand a properly
removed case to state court when all federal-law claims
in the action have been eliminated and only pendent
state-law claims remain.) State trial courts are likely to
ignore pleadings filed in federal court once the case is
remanded.
This case illustrates the unjust result of the lack of a
uniform rule on this issue. Because of the structure of the
removal procedures, the issue yearns for this Court to
12
give guidance to federal and state courts in every juris-
diction. Initially, it should be noted that defendants are
often faced with a conflict between the time within which
an answer might be due in state court and the amount of
time within which the federal statutes give a defendant
the right to remove a case to federal court. Technically, a
defendant could respond to a state court complaint
within twenty days even though it later files a timely
petition for removal after the twenty day period had
expired. The issue in this case arises because of an over-
lap in jurisdiction which often occurs when the filing of |
the pleadings in federal court and the filing of the plead-
ings in state court are not simultaneous. Obviously, 28
U.S.C. § 1446(e) does not contemplate nor require that
simultaneous filings will be made. When a delay does
occur, an overlap in jurisdiction between the state and
federal court exists as described in Berberian v. Gibney, 514
F.2d 790, 792 (1st Cir. 1975):
It is clear that once a removal petition has been filed
and proper notice given adverse parties and the state
court, the district court has exclusive jurisdiction
over the case. But what of the lapse between the
filing of the petition in federal court and its filing in
state court and notice to the opposing party? The
default against appellee in this case was entered by
the state court six days after the removal petition was
filed in the district court and three days before the
petition was filed with the state court.
It may be argued that since the burden of the require-
ment in § 1446(e) that, ‘promptly after’ filing, notice
be given to adverse parties and to the state court falls
upon the party seeking removal, the risk attendant
upon tardy compliance, including intervening action
defeating federal jurisdiction, should fall upon him
as well. But, in all those jurisdictions requiring a
13
defendant to answer a complaint in less than 30 days,
such an interpretation would eviscerate the language
of § 1446(b), permitting a defendant 30 days to
remove. Moreover, it would emphasize the technical
compliance with terms of the statute to the detriment
of its central purpose. The function of the removal
statutes, 28 U.S.C. § 1441-1450, is to provide a simple
means, uniformly applied irrespective of state rules,
for defendants entitled to do so to remove actions
from state and federal court. Thus, we are inclined to
agree with Professor Moore, that the jurisdiction of
the federal court attaches a soon as the petition for
removal is filed with it, and that both state and
federal courts have jurisdiction until the process of
removal is completed. Citing 1A. Moore 0.168 [3.-8],
at 509-511.
514 F.2d 792-793. In the section from Professor Moore’s
treatise cited above, the noted commentator stated:
In the interim between the filing of the removal
petition in the federal district court and the fulfill-
ment of the foregoing requirements, what is the
respective jurisdiction of the federal district court
and the state court? The jurisdiction of the federal
district court attaches when the removal petition is
filed with it, and it may validly take action in the
case during the interim period.
Under this view of the law, when the removal plead-
ings were filed with the state court clerk, albeit twenty-
six days past the filing in federal court, the federal court
obtained exclusive jurisdiction which extended retroac-
tively to the day the petition was filed with the federal
clerk. During this period of exclusive jurisdiction in fed-
eral court, the respondent filed a Motion for Default
Judgment in state court. The state court delayed a ruling
until a date after the order of remand although the state
court delay was not in deference to the federal court.
|
14
Rather, it was a delay based upon Petitioner’s request for
time to brief the issues in state court. There is a conflict of
decisions among the states as to how to deal with this
problem. Some courts have held that the time period for
complying with state filing deadlines is tolled during the
interim between petition for removal and an order of
remand. See General Electric Credit Corp. v. Smith, 484
So.2d 75 (1986); Lucky Friday Silver-Lead Mines Co. v. Atlas
Mining Co., 395 P.2d 477 (S.Ct. Ida. 1964); Dauenhauer v.
Supreme Court, 307 P.2d 724 (Calif. 1957); Allen v. Hatchett,
91 Ga. App. 571, 86 S.E.2d 662 (1955). These decisions all
hold that the amendment of the Federal Rules in 1949
eliminated the need for the removing party to comply
with state court filing deadlines or risk default in the
event the removal petition was not granted. The Supreme
Court of Arkansas, lacking a uniform national rule,
rejected these arguments and squarely put the risk of
nonfiling upon the Petitioner.
Another conflict exists in that some state courts have
held that the state courts should give effect to pleadings
filed in federal court when the case is remanded to state
court. In Edward Hansen, Inc. v. Kirney P.O. Associates, 166
N.J. 161, 399 A.2d 319 (1979), the New Jersey Appellate
Court rejected the analysis of prior decisions placing the
aforementioned risk on the removing party and stated:
This rationale has been eliminated by a provision of
the modern removal statute, 28 U.S.C.A. § 1446(e),
which prohibits any proceeding in the State Court
after removal and prior to remand. Any pleadings a
party might try to file to preserve his rights in State
Court would be void and of no affect .. . . This Court
is of the opinion that the better rule favors giving
continued affect to those pleadings. Adoption of the
15
federal pleadings filed in this case would avoid the
needless waste of time, effort and expense which
would result from requiring counsel to duplicate in
this Court their actions of the past six years in the
Federal Court. Such an unnecessary duplication of
effort alone indicates the preferability of adopting
the federal pleadings.
Additionally, the adoption of pleadings would result
in the postremand procedure in this Court mirroring
as nearly as possible the post removal procedure in
the Federal Court. Upon removal, the entire record is
delivered to the clerk of the Federal Court and that
Court assumes its jurisdiction with the case in exactly
the same position as when it was removed from the
State Court. Adoption of the federal pleadings would
result in this Court’s renewing its jurisdiction with
the case in exactly the same posture as when it was
remanded from the Federal Court... . In conclusion,
the pleadings filed in the District Court should be
adopted as if they had originally been filed in this
Court.
399 A.2d at 323. Again, the decision of the Supreme Court
of Arkansas rejects this well-reasoned rule and calls for
this Court to establish such a rule for the benefit of state
courts and federal courts in this country.
The New Jersey Court in Hansen, and the Arkansas
Supreme Court below, concluded, based upon a decision
by this Court in Ayres v. Wiswall, 112 U.S. 187, 5 S.Ct. 90,
28 L.Ed. 693 (1884), that state policy determines what
effect, if any, a State Court will give federal pleadings
upon remand. Petitioner respectfully suggests that this
Court should reevaluate the Ayres decision in light of
recent precedent, modern practice and the modern
removal statutes. In the Hansen decision, the New Jersey
court noted that “More recent federal cases have not
16
altered the rule announced in Ayres but have exhibited an
expectation that the state court would on remand con-
sider the entire case, including the federal pleadings.”
399 A.2d at 321.
In Ayres, the Circuit Court of the United States con-
cluded that a case that had been removed to federal court
should be remanded because the federal court had no
jurisdiction. In its order of remand the Circuit Court
ordered “[t]hat the proceedings had thereon be and the
same are hereby set aside and held for naught.” In affir-
ming the order of remand, the Supreme Court noted, “It
will be for the State Court, when the case gets back there,
to determine what shall be done with pleadings filed and
testimony taken during the pendency of the suit in the
other jurisdiction.” Petitioner submits that application of
Ayres by state courts in rejecting federal pleadings is
misplaced. Further, 28 U.S.C. § 1447(c) provides_that
upon remand, “The state court may thereupon proceed
with such case.” The statutory language contemplates
that the state court will proceed with the case previously
pending. Perhaps a more important distinction from
Ayres is that federal courts, as in this case, will remand a
case in which jurisdiction was proper and in which pro-
ceedings prior to remand are not void. State courts
should be required to accept the pleadings filed in federal
court.
While the Supreme Court of Arkansas concluded
federal law did not require it to give effect to the plead-
ings filed in federal court, a defendant’s federal right to
a removal is infringed by state application of default
judgments. This Court should declare a national uniform
rule to protect the federal right of removal.
——7~™
17
II.
THE ARKANSAS SUPREME COURT’S
REFUSAL TO RECOGNIZE A TIMELY
ANSWER FILED IN FEDERAL COURT ON
REMAND VIOLATES SUBSTANTIVE AND
PROCEDURAL DUE PROCESS.
The Fifth and Fourteenth Amendments to the United
States Constitution guarantee that no persons shall be
deprived of life, liberty, or property without due process
of law. The courts have delineated two forms of due
process: procedural, the required characteristics of pro-
ceedings seeking to effect a depirivation of life, liberty, or
property; and substantive, the constitutional guarantee
that no person will be deprived of life, liberty, or prop-
erty for arbitrary reasons. The United States Supreme
Court has never defined the term “due process” prefer-
ring to characterize the right as:
The primary and indispensable foundation of indi-
vidual freedom. It is the basic and essential term in
the social compact which defines the rights of the
individual and delimits the powers which the state
may exercise.
In Re Gault, 387 U.S. 1, 20, 18 L.Ed.2d 527, 542, 87 S.Ct.
1428 (1967).
The touchstone of due process is protection of the
individual against arbitrary action of the government.
Wolff v. McDonald, 418 U.S. 539, 558, 41 L.Ed.2d 935, 94
S.Ct. 2963 (1974). Whether the trial be in a federal or state
forum, the concern of due process is the fair administra-
tion of justice. Mayberry v. Pennslyvania, 400 U.S. 455, 465,
27 L.Ed.2d 532, 540, 91 S.Ct. 499 (1971).
18
There is no justice in the refusal by the Supreme
Court of Arkansas to recognize the answer timely filed in
federal court by Allstate either as tolling the statutory
answer deadline in state court or as an acceptable plead-
ing on remand. Through procedural and substantive
errors, the Supreme Court of Arkansas has denied All-
state due process.
The Supreme- Court of Arkansas has held it may
ignore all pleadings timely filed in federal court after
remand of the case to state court. However, the federal
courts have stated that when a case is remanded from
federal court to state court, it is remanded intact. Kromer
v. McNabb, 308 F.2d 863 (10th Cir. 1962). This court must
resolve the dispute which exists between the state courts
and federal courts as to the effect of pleadings filed in
federal court prior to remand. This a question of
procedure.
As stated by Justice Cardozo:
The Fourteenth Amendment is not a guarantee that a
trial shali be devoid of error . . . to bring about a
taking without due process of law by force of such a
judgment, the error must be gross and obvious, com-
ing close to the boundary of arbitrary action.
Roberts v. New York, 295 U.S. 264, 277, 79 L.Ed. 1429
(1935).
The Supreme court of Arkansas was given three
options with respect to the fate of Allstate. It could: (1)
treat the timely answer filed in federal court as tolling the
state statutory answer time until after remand to state
court; (2) accept the timely answer filed in federal court
as effective on remand; (3) refuse to recognize that a
19
timely answer was filed in federal court and hold Allstate
in default in state court.
The Supreme Court of Arkansas denied that the fed-
eral court ever had jurisdiction, refused to recognize the
filings in federal court, and applied its own policy as to
default, all the while acknowledging:
Although it had appeared and defended in the fed-
eral court, it had not done so in state court.
Under the Federal Rules of Civil Procedure, Allstate
appeared and defended and was never in default in
federal court. The Supreme Court of Arkansas by refus-
ing to recognize the litigation in federal court on remand
arbitrarily deprives Allstate of its due process right to a
fair adjudication on the merits and deprives it of its
property without process at all.
No hard and fast rule can be laid down as to what is,
or what is not, due process. Brock v. North Carolina, 344
U.S. 424, 427, 97 L.Ed. 456, 459, 73 S.Ct. 349 (1953). Due
process is flexible and calls for such protections as the
particular situation demands. Matthews v. Eldredge, 424
U.S. 319, 334, 47 L.Ed.2d 18, 33, 96 S.Ct. 893 (1976). But,
the phrase itself expresses the requirement of fundamen-
tal fairness. Lassiter v. Dept. of Social Services, 452 U.S. 18,
24, 68 L.Ed.2d 640, 648, 101 S.Ct. 2153 (1981).
It is patently unfair for a state court to disregard a
timely filed federal answer on remand. It is procedurally
and substantively unjust. It will continuously result in
default against a party who admittedly timely appeared
and defended in federal court at a time when that court
had jurisdiction.
+
eR i
20
CONCLUSION
This Petition and case demonstrate the need for a
national standard of uniform application to define and
protect a defendant’s right arising under the federal
removal statute. This Petition recites the inexplicable con-
flict as different states grapple with the applicability of
certain federal rights to state trial practice. It is the con-
flict in those state court decisions which makes certiorari
proper.
While there is no specific definition of due process, it
is a concept related to constitutional fairness. This fair-
ness and its justice should not vary in result from
Arkansas to New Jersey to Idaho and to Georgia as the
decisions now permit. Absent a uniform, national rule,
the federal right varies according to the boundaries and
perceptions of the forum state. Due process is both too
sacrosanct and too fragile to be so geographically illusory
without the guidance of this Court’s decision.
Respectfully submitted,
Fripay, ELDREDGE & CLARK
2000 First Commercial Building
Little Rock, Arkansas 72201
(501) 376-2011
Attorneys for Petitioner
la
ALLSTATE INSURANCE COMPANY,
Appellant,
Vv
Ken BOURLAND, Individually and as
Administrator of the Estate
of Jodi Bourland,
Appellee.
No. 88-26.
Supreme Court of Arkansas.
Oct. 10, 1988. -
Insured under automobile policy brought action
against insurer to recover uninsured motorist benefits.
The Circuit Court, Craighead County, Olan Parker, Jr., J.,
entered default judgment for insured, and appeal was
taken. The Supreme Court, Newbern, J., held that: (1)
answer filed in federal court was not sufficient to satisfy
rule requiring answer to be filed in state court within 30
days, and (2) insured was not entitled to attorney fees
and penalty.
Affirmed.
Hays and Purtle, JJ., dissented and filed opinions.
William H. Sutton and Kevin A. Crass, Little Rock,
for appellant.
David Rees, Jonesboro, for appellee.
NEWBERN, Justice.
This is a unique default judgment case. The appellee,
Ken Bourland, sued the appellant, Allstate Insurance
Company, alleging entitlement to uninsured motorist
coverage with respect to an accident in which his daugh-
ter, Jodi Bourland, was killed. He sued as administrator
2a
of the daughter’s estate and individually for damages to
a car owned by him. Allstate denied coverage, claiming it
had notified Mr. Bourland of cancellation. As Allstate is a
nonresident corporation, it had 30 days to answer the
complaint. Ark.R.Civ.P. 12(a). The complaint was filed
April 22, 1987. On May 21, 1987, an answer and removal
petition were filed in a federal court. Nothing further was
filed in the circuit court until June 17, 1987, when copies
of the removal documents were filed. Mr. Bourland
moved for default judgment in the circuit court on June
19, 1987. The federal court remanded the case to the
circuit court on June 24, 1987, after finding that Allstate
had failed to file the removal documents with the circuit
court “promptly” as required by 28 U.S.C.A. § 1446(e) to
effect removal. Thereafter, the circuit court entered a
default judgment against Allstate. The principal question
is whether the circuit court should have refused default
judgment because an answer had been filed in the federal
court within the time prescribed by Rule 12(a) for
answering in the circuit court. Mr. Bourland cross-
appeals from the circuit court’s ruling that he is not
entitled to an attorney fee and penalty pursuant to
Ark.Code Ann. § 23-79-208 (1987). We hold the court
correctly entered the default judgment and that it was not
error to refuse the fee and penalty. We affirm on appeal
and on cross-appeal. At a hearing on the default judg-
ment motion, the attorney representing Allstate testified
that copies of the removal documents were prepared for
filing with the circuit clerk and that she directed her
secretary to place them in the mail to the circuit clerk. An
affidavit of the secretary to the effect that she did so on
May 21, 1987, was presented. The attorney testified that
3a
file-marked copies of the pleadings were returned to her
by mail from the federal court, but there was no testi-
mony that any such copies were returned to her from the
circuit clerk’s office. Counsel for Mr. Bourland presented
a copy of a letter from Allstate’s attorney to a lawyer
representing a plaintiff in a companion case, which was
removed to the federal court, arising out of the same
accident. The letter showed copies of the removal petition
and related documents were being sent to the circuit clerk
with a copy of the letter to counsel. By a similar letter,
dated May 21, 1987, Allstate’s lawyer gave notice to Mr.
Bourland’s lawyer of the attempted removal. However, it
contained no indication that a copy of the letter and
copies of the documents it enclosed were mailed to the
circuit clerk. By comparison of these letters, Mr. Bourland
sought to show that the mailing to the circuit clerk had
not taken place.
An affidavit from the circuit clerk was presented, in
which she stated that she received no answer in the case
before June 16, 1987, and received only the “documenta-
tion... to be filed . . . on June 17, 1987.” In the order
declaring Allstate in default, the circuit judge found as a
matter of fact that no notice of removal was filed with the
circuit clerk until June 17, 1987.
Allstate contends the circuit court erred in failing to
consider the answer filed in the federal court sufficient to
satisfy the requirement of Ark.R.Civ.P. 12(a) that an
answer be filed within 30 days. Alternatively, Allstate
contends the default should have been set aside pursuant
to Ark.R.Civ.P. 55(c) due to “excusable neglect, unavoid-
able casualty, or other just cause.”
4a
1. Default
Allstate is unable to cite, and we have been unable to
find, any case in which there was a remand from the
federal to the state court where it was held that a state
court must treat a pleading filed in the federal court as
having been filed in the state court for any purpose. Mr.
Bourland has been unable to cite any authority, and we
know of none, holding that a default judgment must be
entered where a case has been remanded from the federal
court to the state court after, and by reason of, a failure to
comply with the requirement of 28 U.S.C.A. § 1446(e) that
removal papers be promptly filed in the state court in
order to effect the removal.
Prior to a change in the federal law which occurred
in 1949, an order of the federal court to which removal
was sought was required to complete removal. A party
seeking to remove was required to meet state court filing
requirements until the removal was approved by the
federal court or run the risk of being in default in the
state proceedings if removal were refused by the federal
court. The leading case discussing this change in the law
is Hopson v. North American Ins. Co., 71 Idaho 461, 233 P.2d
799 (1951). See also Allen v. Hatchett, 91 Ga.App. 571, 86
S.E.2d 662 (1955). The enactment of § 1446(e) made it
clear that removal was effected by the removing party’s
compliance with the statute, and no federal court order
was required to effect removal. The party seeking to
remove has it in his or her power to deprive the state
court of jurisdiction merely by compliance with the pro-
visions of § 1446(e). While there is no longer a need to
comply with state court filing deadlines to avoid default
if the case is removed to the federal court, it is clear that
5a
removal is not effected unless the removal documents are
filed promptly with the state court.
In each of the cases cited by Allstate on this point,
removal was effected by a proper filing in the federal and
state court, but the case was remanded because the fed-
eral court found that it lacked jurisdiction. They hold that
the time period in which responsive pleadings are due in
the state court is tolled from the time the removal petition
is filed until the case is remanded to the state court. The
Allen and Hopson cases, cited above, are typical of such
holdings. Another case cited by Allstate is a reported trial
court decision, Edward Hansen, Inc. v. Kearny Post Office
Associates, 166 N.J.Super. 161, 399 A.2d 319 (1979), in
which the question was whether, after remand of a prop-
erly removed case, the state court could permit the plead-
ings previously filed in the federal court to stand in the
subsequent state court proceedings. Citing Ayres v. Wis-
wall, 112 U.S. 187, 5 S.Ct. 90, 28 L.Ed. 693 (1884), the
judge noted that, “[flollowing a remand the effect to be
given to pleadings filed in the federal court is a matter of
state policy and is not subject to federal determination”
166 N.J.Super. at 165, 99 A.2d at 321. He then held he
could accept the federal court pleadings as it would not
prejudice the parties and would save duplication of
effort.
As noted above, the case before us is not like the
New Jersey case or the others cited because here no
removal had been effected. We therefore cannot say that
the filing deadline in the circuit court was tolled. We
agree with the New Jersey judge that the question pre-
sented is one of state policy. We are certainly not required
by federal law to give the answer filed in federal court
6a
the effect of meeting the filing deadline required by our
rule, so we look to our own policy.
In the Hansen case, the New Jersey judge cited our
decision in Trinity Universal Ins. Co. v. Robinson, 227 Ark.
482, 299 S.W.2d 833 (1957), where we dealt with a case
which had been removed and then remanded and the
parties had agreed that an answer filed in the federal
court would be treated as if it had been filed in the state
court. Our holding was that other answers, as to which
no such agreement had been reached, would not be so
treated. Apparently no filing deadline question was
involved. While that decision may be somewhat instruc-
tive of our policy, it does not solve the problem with
which we are faced here.
This court has always held that default judgments
are not the law’s favorites. See, e.g., Burns v. Shamrock
Club, 271 Ark. 572, 609 S.W.2d 55 (1980). Perhaps our
most recent important default judgment decision is Tapp
v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), in which we
held failure to file an answer within ten days of a ruling
denying motions for dismissal and summary judgment
did not place a party in default despite the requirement
of Ark.R.Civ.P. 12(a). We said, citing Cammack v. Chalmers,
284 Ark. 161, 680 S.W.2d 689 (1984), that there had been
no failure to appear in the action, and we would not place
form over substance. The case before us is similar to
those in the sense that it was shown that Mr. Bourland’s
counsel had knowledge of the answer filed in the federal
court. There, however, the similarity ends. Allstate filed
nothing in the state court within the allotted 30 days.
Although it had appeared and defended in the federal
court, it had not done so in the state court.
Oe or nS RE ee OE
7a
We have been strict in our interpretation of Rule 55
where there has been a failure to make any sort of timely
filing or appearance in the trial court. In Webb v. Lambert,
295 Ark. 438, 748 S.W.2d 658 (1988), we held that a
default judgment was required where the answer was
filed after the time limit had run, even though the plain-
tiff had received a copy of the answer before the time ran
out. We noted that the rule says default judgment “shall”
be entered in that instance. See also Declerk v. Tribble, 276
Ark. 316, 637 S.W.2d 526 (1982). We see no difference
between that strict policy and the policy which should be
applied in the case of failure to file removal documents
within the time allowed for answer or otherwise
“promptly.” The trial court, like the plaintiff, is entitled to
be informed of the status of litigation before it, or not
before it as the case may be. It is not asking too much to
require litigants or counsel to see to it that if the state
court is to be deprived of jurisdiction the very instrument
by which that is to be accomplished is filed there.
2. Excusable neglect, unavoidable casualty, or other just
cause
The circuit court denied Allstate’s motion to set the
default judgment aside for excusable neglect or unavoid-
able casualty as permitted by Rule 55(c). Allstate cites
Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976), for
the proposition that the motion should have been granted
because there was reason for counsel to believe that there
had been compliance with the filing requirement. In that
case, an answer was filed, but then a second, amended,
complaint was filed and served on the defendant’s coun-
sel. It was shown that the original answer was not
8a
stricken, the plaintiff waited some three months to take
the default judgment, and defendant’s counsel had some
reason to believe that the second service was of a copy of
the complaint which had already been answered. These
facts might have constituted excusable neglect, but we
did not say so. We held rather that there was “substantial
compliance” with the filing requirement and that the
delay resulted in waiver of the filing requirement. We
cannot say either of those things here.
Also cited is Perry v. Bale Chevrolet Co., 263 Ark. 552,
566 S.W.2d 150 (1978). There the defendant’s uncon-
troverted affidavit stated he had been assured by the
plaintiff that the case against him would be dismissed
before the time for answer ran. Upon learning that the
case was not to be dismissed, the defendant drafted a
handwritten answer which he attempted to file the day
before the time ran out. His attempted filing was rejected
due to a local court rule requiring that pleadings be
typewritten. He filed a typewritten answer one day late.
We held there was “excusable neglect or other just
cause.” We find this case distinguishable, because there
had been timely personal contact with the court clerk in
an attempt to file the answer. In Declerk v. Tribble, supra,
which is more like the case before us now, we held that it
was not excusable neglect for counsel to place the blame
on a secretary who allegedly covered with other papers
an answer which was ready to be filed and waiting on the
lawyer’s desk. As in this case, nothing was filed with the
trial court within the prescribed time limit. While there is
nothing wrong with using the mail to send a pleading to
the court, our rules do not permit filing by placing a
pleading in the mail.
9a
We cannot say the trial court erred in refusing to set
aside the default judgment.
3. Attorney fee and penalty
A plaintiff must recover the exact amount claimed
against an insurance company to be able to take advan-
tage of Ark. Code Ann. § 23-79-208 (1987) which allows
recovery of an attorney fee and penalty. Cato v. Arkansas
Municipal League Municipal Health Benefit Fund, 285 Ark.
419, 688 S.W.2d 720 (1985); Farm Bureau Ins. Co. v. Pal-
adino, 264 Ark. 311, 571 S.W.2d 86 (1978). In his com-
plaint, Mr. Bourland alleged Allstate was liable under its
policy number 015-446-992 with expiration date of May
19, 1987, for $25,000 for wrongful death, $4,190.35 medi-
cal bills, and $6,500 for the loss of the reasonable value of
the automobile. The total thus sought, absent the attorney
fee, interest, and penalty, was $35,690.35. The court
awarded $34,953.85.
Mr. Bourland argues that after he learned of the
insurance policy’s provisions, he sent a demand letter to
Allstate seeking precisely the amount which was ulti-
mately awarded by the-court, but that he refused to
amend his complaint to state that amount as he feared it
might somehow alter his prevailing position on the issue
of default.
We agree with Allstate’s argument; Mr. Bourland
cannot have it both ways. As he sought from the court
more damages than he was awarded, he is not entitled to
the penalty.
Affirmed on appeal and affirmed on cross-appeal.
10a
PURTLE and HAYS, JJ., dissent.
HAYS, Justice, dissenting.
In this case, a copy of the answer filed with the
District Court was sent to the opposing counsel within
the time allowed by Rule 12. The copy sent to the attor-
ney met the requirements for proper service under ARCP
5. There is absolutely no dispute that this pleading was
received, and that opposing counsel had notice of the
filing as well as the contents of the pleading. For this
reason | cannot agree with the conclusion reached by the
majority.
While the language of Rule 12 states that the answer
is to be filed rather than served, that is not dispositive of
the issue. The Reporter’s Notes to Rule 12 state, with
regard to that point:
5. Rule 12 substitutes the word “file” for serve and
requires that the responsive pleading be filed within
the time prescribed by this rule as opposed to serving
the pleadings as is the case under FRCP 12. By using
this terminology, it is believed that arguments can be
avoided as to when a pleading was served. (My
emphasis).
The language in the Notes, referring to the use of
filing over service as a choice of “terminology,” plainly
suggests that the filing of the answer is not a require-
ment, but rather, merely the determinative factor when
the issue of timeliness of service arises. Furthermore,
there is nothing in this comment that suggests than an
answer that is served in a timely fashion will not fulfill
the requirements of the rule if the filing is out of time.
Seen
lla
Rule 12 was altered from the form used in the Fed-
eral Rules, not for an innate preference for filing as
opposed to service, but for the purpose of avoiding dis-
putes when the issue of timeliness over service arose.
When there is no dispute as to the date of service of the
answer, there is no need to resort to the date of filing to
make a determination as to the timeliness of the pleading.
When actual notice by way of service is given to a party
and there is absolutely no dispute as to the timeliness of
that service, common sense directs that the filing provi-
sion of Rule 12 should prevail.
We have repeatedly held that default judgments are
not favored by the courts and should be avoided when
possible. Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176
(1987); Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689
(1984); A.O. Smith Harvestore Products, Inc. v. Burnside, 282
Ark. 27, 665 S.W.2d 288 (1984); Winters v. Lewis, 260 Ark.
563, 542 S.W.2d 746 (1976); Perry v. Bale Chevrolet Co., 263
Ark. 552, 566 S.W.2d 150 (1978). We have further found
that substantial compliance by a defendant is sufficient to
avoid the harshness of a default judgment in several
instances. Winters v. Lewis, supra; Perry v. Bale Chevrolet,
supra; Cummings v. Lord’s Art Galleries, 227 Ark. 972, 302
S.W.2d 792 (1957); Easley v. Inglis, 233 Ark. 589, 346
S.W.2d 206 (1961). While the language of “substantial
compliance” was not used specifically, that was essen-
tially our holding in two more recent cases, Tapp v. Fowler,
supra and Cammack v. Chalmers, supra. Substantial compli-
ance has been our way of defining a situation where we
found that the rules had been complied with sufficiently
to satisfy the rule and its purpose, and where a different
holding would lead to obvious injustice.
EE —
i |
12a
I have no difficulty in concluding that the timely
service of the answer in this case was substantial compli-
ance with Rule 12. Given the circumstances of this case
and the comments explaining Rule 12, it is clear that the
rule and its purpose have been satisfied. As we stated in
Tapp v. Fowler, supra, in reversing a default judgment that
had been granted on technically correct, but unsupport-
able grounds, “To hold [otherwise] would defy common
sense, and, at a minimum, place form over substance.”
PURTLE, Justice, dissenting.
I disagree with the majority on the appeal and cross-
appeal. If we affirm on appeal we should reverse on
cross-appeal because the amount awarded was exactly
the same amount the appellee offered to take prior to
trial.
It is undisputed that the appellant filed a timely
removal action and gave actual! notice to the appellee’s
attorney. The appellant furnished adequate proof that it
promptly mailed the removal papers to the state court.
Not one person has been misled by the failure to file the
remgval papers in the state court. In truth, the facts
support the theory that the state court failed to properly
file the removal papers as strongly as they do the theory
that the appellant’s lawyer failed to mail them. A logical
conclusion is that the postal service lost them.
A common sense approach to this problem is to allow
the time the case is pending in federal court to suspend
the running of time within which to file in the state court.
Upon remand to the state court time should commence
where it left off. If the case had not been remanded, the
answer would never have been required to be filed in the
13a
state court. Obviously the federal court was looking for
an excuse to remand when it discovered that the removal
papers had not been filed in the state court. Placing form
over substance does not further justice in this case.
In spite of the failure by the appellant to see that the
removal papers were placed in the correct file in the state
court, we could still grant relief and do justice by apply-
ing the “other just cause” provision of ARCP, Rule 55(c).
That’s exactly what we did in Tapp v. Fowler, 291 Ark. 309,
724 S.W.2d 176 (1987), where we reaffirmed our holding
in Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689
(1984), allowing a late answer to be filed. We stated: “To
hold on the facts before us that the appellant failed to
appear or otherwise defend appellee’s action would defy
common sense, and, at a minimum, place form over
substance.” We reversed and remanded with directions to
set aside the default judgment.
Our procedures allow pleadings to be mailed to the
courts, and allows extra time when the mail service is
utilized. See ARCP Rule 6(d). A statement by an attorney
that he has correctly addressed and mailed a pleading
with proper postage is evidence that he has complied
with this rule. Attorneys are not insurers or guarantors of
delivery of the United States mail. Sometimes we strain at
a gnat and swallow a camel. The court just did.
I would have the default judgment vacated and order
the case tried on its merits.
14a
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
KEN BOURLAND, Individually and
as Administrator of the JODI
BOURLAND ESTATE /PLAINTIFF
V. NO. J-C-87-124
ALLSTATE INSURANCE COMPANY DEFENDANT
ORDER
(Filed Jul 24, 1987)
Pending -now_is_the motion of the plaintiffs, Ken
Bourland, et al, to remand this action to the Circuit Court
of Craighead County, Arkansas, Eastern District. For the
reasons that follow the plaintiffs’ motion is granted.
The complaint in this action was filed in the state
court on April 22, 1987. Twenty-nine (29) days later, on
May 21, 1987, the defendant, Allstate Insurance Com-
pany, filed its answer, petition for removal, notice of
removal and removal bond in this court. Nothing was
filed by the defendant in the state court, however, until
June 17, 1987, a delay of twenty-six (26) days, at which
time a copy of the petition for removal was submitted to
that court. The plaintiffs now move for remand arguing
that the defendant failed to comply with the procedural
requirement of the removal statute, 28 U.S.C. § 1446.
Under § 1446(b) a defendant may file a petition for
removal within thirty (30) days of its receipt of the initial
pleading in the state court action. Promptly after the
filing of the petition for removal, the defendant must file
a copy of the petition with the state court. 28 U.S.C.
§ 1446(e). The plaintiff argues that the delay of twenty-six
(26) days between filing the petition for removal in this
court and the filing of a copy of the petition in state court
15a
is a procedural defect which entitled it to remand. The
defendant, on the other hand, asserts that the delay was
inadvertent, that § 1446 was “substantially” complied
with, and that, therefore, removal was proper.
It has been consistently held in this jurisdiction that
removal statutes must be strictly construed, resolving all
doubts in favor of state court jurisdiction. Barnes v. South-
western Bell Telephone Co., 596 FSupp. 1046 (W.D. Ark.
1984); Estate of Fitzpatrick v. Brehm 580 FSupp. 731 (W.D.
Ark. 1984); Capeheart-Creager, etc. v. O'Hara & Kendall
Aviation, 543 F.Supp. 259 (W.D. Ark. 1982); Keller v. Carr,
534 FSupp. 100 (W.D. Ark. 1981); Strange v. Arkansas-
Oklahoma Gas Corp., 534 ESupp. 138 (W.D. Ark. 1981);
Friddle v. Hardee’s Food Systems, Inc., 534 FSupp. 148
(W.D. Ark. 1981). In deference to these precedents the
court declines to hold either that the defendant “sub-
stantially” complied with the requirements of § 1446(e),
or that “substantial” compliance is sufficient to effect
removal. Rather, the court finds that the twenty-six (26)
~ day delay here was not prompt within the meaning of 28
U.S.C. § 1446(e), and holds that removal of this action
was improper.
Accordingly, IT IS HEREBY ORDERED that this
action should be, and is hereby, remanded to the Circuit
Court of Craighead County, Arkansas, Eastern Division.
This 23 day of July, 1987.
/s/ Henry Woods
HENRY WOODS,
U. S. District Judge
This document entered on docket sheet in compliance
with Rule 58 and/or 79(a) FRCP on 7-24-87 by MKF.
16a
IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY,
ARKANSAS EASTERN DISTRICT
KEN BOURLAND, Individually, and
as Administrator of the JODI
BOURLAND ESTATE PLAINTIFF
v. NO. CIV-87-26
ALLSTATE INSURANCE COMPANY DEFENDANT
ORDER
(Filed Aug 6, 1987)
On Monday, August 3, 1987, plaintiff's motion for
default came on to be heard and the court finds as
follows:
1. That on April 24, 1987, plaintiff filed his com-
plaint in the Circuit Court of Craighead County, Eastern
District.
2. That on May 21, 1987, defendant filed its answer,
petition for removal, and bond for removal in the United
States District Court, Eastern District of Arkansas, Jones-
boro Division.
3. That the notice of removal and petition for
removal were not filed with the Circuit Court of
Craighead County, Eastern District, until June 17, 1987.
4. That defendant is in default in the Circuit Court
of Craighead County, Eastern District.
5. That a trial on the issue of damages will be held
at a later date.
IT IS THEREFORE ORDERED, that defendant, All-
state Insurance Company, is in default, and that a jury
trial on the issue of damages will be held at a later date.
17a
DATED this 6 day of August, 1987.
/s/ Gerald Pearson
Circuit Judge
APPROVED:
/s/ David Rees
Attorney for Plaintiff
BARRETT, WHEATLEY, SMITH & DEACON
/s/ Barry Deacon
Attorneys for Defendant
18a
IN THE CIRCUIT COURT OF
_CRAIGHEAD COUNTY, ARKANSAS
KEN BOURLAND, Individually, and
as Administrator of the JODI
BOURLAND ESTATE PLAINTIFF
VS. NO. CIV 87-26
ALLSTATE INSURANCE COMPANY DEFENDANT
JUDGMENT
(Filed Oct 8, 1987)
On this 11th day of September, 1987, the above refer-
enced case comes on for a presentation of damages lia-
bility on the default having already been determined. The
plaintiff appeared by and through his attorneys, Rees
Law Firm, David Rees, and the defendant appeared by
and through their attorneys, Barrett, Wheatley, Smith and
Deacon and Friday, Elderidge [sic] & Clark. The case was
presented and after reviewing all of the pleadings on file,
hearing arguments of counsel, and listening to proof
through the testimony of witnesses on behalf of the plain-
tiff and the defendant the court finds as follows:
1. That this court has jurisdiction of the subject
matter and the persons involved.
2. That the plainti’ ‘n his capacity as administrator
of the Jodi Bourland estate shall have judgment against
the defendant in the amount of $27,965.60. That Ken
Bourland individually shall have judgment against the
defendant in the amount of $6,988.25.
3. That the plaintiff’s petition for penalty, interest,
and attorney’s fees is denied.
19a
IT IS THEREFORE, CONSIDERED, ORDERED, AND
ADJUDGED that the plaintiff, Ken Bourland in his repre-
sentative capacity as administrator of the Jodi Bourland
estate have judgment against the defendant in the
amount of $27,965.60; that Ken Bourland individually
have judgment against Allstate in the amount of $6,988.25
for a total judgment of $34,953.85; that the plaintiff’s
petition for penalty, interest and attorney’s fees be
denied; and that all costs incurred be taxed on the
defendant.
ENTERED this 8 day of October, 1987.
/s/ Olan Parker, Jr.
CIRCUIT JUDGE
APPROVED AS TO FORM:
/s/ David Rees
DAVID REES
ATTORNEY FOR PLAINTIFF
/s/ Barry Deacon
BARRY DEACON
ATTORNEY FOR DEFENDANT
20a
Office of The Clerk
Supreme Court of The State of Arkansas
Arkansas Court of Appeals
Justice Building
Little Rock, AR 72201
November 7, 1988
Leslie M. Steen Kit Acklin
Clerk Deputy
Robin Henthorne Rae W. Millerd
Chief Deputy Deputy
Melissa Fuller Greta Ribens
Chief Deputy Deputy
Janie Owen Allen Waters
Deputy Deputy
Denise Parks
Deputy
William H. Sutton
Attorney at Law
2000 First Commercial Building
Little Rock, AR 72201
Re: 88-26 Allstate Insurance Company v.
Ken Bourland
Dear Mr. Sutton:
The Court made the following order in the
above styled case today:
“Petition for Rehearing is denied.
Purtle and Hays, JJ., would grant.”
Sincerely yours,
LWS/th /s/ Leslie W. Steen
cc: David Rees Leslie W. Steen, Clerk
Pat Fleetwood -
(#CIV87-26)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.