Petition for Writ of Certiorari — McAfee v. Transamerica Occidental Life Insurance

FILED

No. @1 315 AUG 2 1 2001

IN THE

SUPREME COURT OF THE UNITED STATES

ANGELA MCAFEE, individually, and ANGELA

MCAFEE, as next friend of, as natural guardian of, and

as guardian of the property of DAVID RUSSELL

MCAFEE, JR., BRANDON CHARLES MCAFEE, and

MICHAEL CHASE MCAFEE, minors,

Petitioners

vs.

TRANSAMERICA OCCIDENTAL LIFE INSURANCE

COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Counsel for Petitioners:

Ronald Arthur Lowry

Attorney at Law

P.O. Box 3005

Marietta, Georgia 30061

(770) 427-8468

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QUESTIONS PRESENTED

(1) _ This case presents an issue of first impression.

Pursuant to the decision of this Court in Murphy Brothers,

Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 143

L.Ed.2d 448, 119 S.Ct. 1322 (1999) is the Defendant’s

removal of a case from a State Court to the United States

District Court premature if such removal is made before

service of process takes place when no waiver of service has

been made by the Defendant?

LIST OF PARTIES INCLUDING PARENT AND

SUBSIDIARY CORPORATIONS

Counsel of record for Petitioners certifies that the

following listed parties, including parent and subsidiary

corporations have an interest in the outcome of this case

Parties:

Angela McAfee

David Russell McAfee, Jr., by his natural

guardian, Angela McAfee

Brandon Charles McAfee, by his natural

guardian, Angela McAfee

Michael Chase McAfee, by his natural

guardian, Angela McAfee

Transamerica Occidental Life Insurance

Company

Transamerica Corporation

Aegon N.V. (Parent Company)

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TABLE OF CONTENTS AND CITATIONS

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TABLE OF AUTHORITITES

Murphy Brothers. Inc. v. Michetti Pipe Stringing. Inc..,

526 U.S. 344, 143 L.Ed.2d 448, 119 S.Ct. 1322 (1999)

Nha PA Ee ace i, 4, 5, 6, 7, 8, 9, 10

BUSCA. 6 oe ee V

BUSCA. 8 eS ee v, 4,5, 7.9

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit is not reported. A copy of same is

attached hereto as Appendix A. The Court of Appeals’

denial of Petitioners’ Petition for Rehearing En Banc is not

reported and is attached hereto as Appendix B. The

opinion of the United States District Court for the Northern

District of Georgia, Atlanta Division, is reported at 2000

U.S. Dist. Lexis 19615 (N.D.Ga. 2000), however, that

opinion fails to deal with the issue presented by this

Petition for Certiorari. A copy of the Order of the District

Court ruling on the issue presented is attached hereto as

Appendix C. A copy of the Order of the District Court

denying Plaintiffs’ Motion for Reconsideration of the issue

presented is attached hereto as Appendix D.

JURISDICTION

Petitioners’ Petition for Rehearing En Banc

respecting the decision of the Court of Appeals dated

March 27, 2001 was denied by the Court of Appeals on

July 20, 2001. This Petition for Writ of Certiorari was filed

within ninety (90) days of the denial of the Petition for

Rehearing En Banc. Jurisdiction of this Honorable Court is

invoked pursuant to 28 U.S.C.§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S.C. §1446(b):

"The notice of removal of a civil action or

proceeding shall be filed within thirty days after the

receipt by the defendant, by service or otherwise, of a

copy of the initial pleading setting forth the claim for

relief upon which such action or proceeding is

STATEMENT OF THE CASE

Petitioners filed their original Complaint in this

action in the State Court of Cobb County, Georgia on July

1, 1999. Respondent removed the case to the United States

District Court for the Northern District of Georgia, Atlanta

Division on July 30, 1999. Service was perfected on

Defendant on August 30, 1999 and Petitioners filed their

Motion to Remand which was denied by Order dated

October 12, 1999. Petitioners filed a Motion for

Reconsideration of the Motion to Remand which was

denied by Order dated November 16, 1999. Petitioners and

Respondent each filed Cross-Motions for Summary

Judgment on the merits of Petitioners’ claim and Briefs in

support and in opposition. On July 28, 2000 the Trial

Court issued its Order denying Petitioners’ Motion for

Summary Judgment and granting Respondent’s Motion for

Summary Judgment. Petitioners filed their Notice of

Appeal on August 8, 2000 and that appeal was briefed and

orally argued before the United States Circuit Court of

Appeals for the Eleventh Circuit. The Eleventh Circuit

issued its opinion on March 27, 2001 affirming the decision

of the Court below. Petitioners filed a Petition for

Rehearing En Banc, which was denied by the Eleventh

Circuit by Order dated July 20, 2001.

STATEMENT OF FACTS

Petitioner, Angela McAfee, is the widow of David

Russell McAfee. The marriage of Angela McAfee and

David McAfee produced three minor children, David Russell

McAfee, Jr., age 16, Brandon Charles McAfee, age 14, and

Michael Chase McAfee, age 9. David McAfee was an

employee of Lockheed-Martin Corporation, working at the

plant in Marietta, Georgia for a period of approximately 19

years and had been a normal Georgia citizen prior to May 11,

1998. On May 11, 1998 at approximately 7:00 p.m. David

McAfee drove to a BP Station/Convenience Store on

Highway 41 in Marietta, Georgia. Mr. McAfee stated to the

attendant, Roy Wade, that he wanted some beer and that "I'll

pay you for it." Mr. Wade saw that McAfee had a gun,

became frightened, went inside, locked the door behind him,

and advised Mr. Wade's wife, Pattie Wade, to go to the back

room. Mr. Wade than called police. Pattie Wade saw David

McAfee holding a "long-barrel gun." After a few minutes,

when Mr. Wade did not emerge from the store with beer, Mr.

McAfee left the premises.

Police officers from both the Cobb County Police

Department and the City of Marietta Police Department

arrived on the scene and were told by Mr. Wade that the man

had left. Mr. Wade pointed the officers in the direction that

Mr. McAfee had taken. The Police located David McAfee in

his van in the parking lot of the Crab House Restaurant on

Highway 41 in Cobb County. Several officers arrived and

surrounded the van. The officers ordered Mr. McAfee to put

down any gun he was holding and to come out of the vehicle

with his hands up. Mr. McAfee exited the vehicle in an

apparent attempt to flee on foot, holding a long barreled gun,

but returned to his car when confronted by Officer Robert M.

Hansen. Shortly thereafter, Mr. McAfee opened the sliding

2

pees,

door of his van, pointed his long barreled gun up in the air,

and fired one round. At that time four officers fired their

weapons, firing twenty-three rounds into the van. Mr.

McAfee was taken to Kennestone Hospital where he was

pronounced dead.

An autopsy was performed by Dr. Brian Frist of the

Cobb County Medical Examiner's Office. That autopsy

reveals that Mr. McAfee died as a result of sixteen gunshot

wounds. It is undisputed that none of the gunshot wounds

was self-inflicted. All of the gunshot wounds were received

as a result of bullets fired by officers of the Cobb County

Police Department and Marietta Police Department. An

analysis of David McAfee's blood was done by the Georgia

Crime Laboratory which revealed that Mr. McAfee was

intoxicated having had a blood alcohol level of .18% at the

time of his death.

David McAfee was an insured through his employer,

Lockheed Martin Corporation, under a policy of insurance

issued by Respondent Transamerica Occidental Life

Insurance Company, which policy provided benefits for

accidental death having a policy limit of One Million Dollars

($1,000,000.00). Dependant coverage for his wife Angela

and his children had been purchased as well. Angela

McAfee notified Transamerica of the death of her husband,

and made claim for the proceeds of the policy. By letter

dated October 15, 1998 Transamerica advised Mrs. McAfee

that it was denying this claim. Mrs. McAfee requested an

appeal of the denial of the claim for the insurance benefits.

By letter dated April 26, 1999 Respondent Transamerica

reaffirmed its earlier decision not to pay benefits. Mrs.

McAfee then initiated this civil ERISA action in an effort to

recover the benefits due her and her children for the death of

her husband.

3

REASONS FOR GRANTING THE WRIT

The decision of the United States Court of Appeals

for the Eleventh Circuit completely ignores the requirements

imposed by the United States Supreme Court in Murphy

Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344,

143 L.Ed.2d 448, 119 S.Ct. 1322 (1999) in that the decision

violates the plain instructions of the Supreme Court and the

plain language of 28 U.S.C. § 1446(b) as interpreted by the

Supreme Court and allowed a Defendant to remove

Plaintiffs’ case from the State Court in which it was filed to a

United States District Court before service was perfected

upon the Defendant and without the Defendant having

waived service as a defense, effectively enlarging the amount

of time for the Defendant to make such removal beyond the

time limits stated in the statute.

On July 1, 1999 Petitioners filed the above-captioned

Civil Action in the State Court of Cobb County seeking to

recover benefits under the subject policy. Counsel for

Petitioners transmitted to Respondent a courtesy copy of

Plaintiffs Complaint by certified mail. However, no service

was perfected on Respondent at that time because

Respondent had moved its registered agent to a new location

without notifying the Secretary of State of Georgia of the

change of address. On July 30, 1999 Respondent filed its

"Notice Of Removal To The United States District Court"

with the State Court of Cobb County and the District Court.

The case was then transferred to the District Court for further

handling. Service was perfected on Respondent on August

30, 1999.

Petitioners filed their Motion to Remand, asking that

the District Court remand the matter to the State Court of

4

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Cobb County. By Order entered October 12, 1999

(Appendix C) the District Court denied Petitioners’ Motion.

Petitioners then filed a Motion for Reconsideration which

was denied by the District Court (Appendix D).

It is apparent from a review of the pleadings filed in

this case, most notably the Notice Of Removal To The

United States District Court, what has occurred in this matter.

The Respondent has removed this matter to the District Court

prematurely. The removal statute, 28 U.S.C. § 1446(b),

specifies that Notice Of Removal of a Civil Action shall be

filed “within thirty days after the receipt by the defendant

through service or otherwise of a copy of the initial pleadings

setting forth the claim for relief upon which such action or

proceeding is based..." (Emphasis added).

The issue of when the removal statute is triggered has

been addressed by this Court recently. In Murphy Brothers.

Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 143 L.Ed.

2d 448, 119 S.Ct. 1322 (1999) the Court decided as follows:

"The question presented is whether

the named defendant must be officially

summoned to appear in the action before the

time to remove begins to run. Or, may the 30

- day period start earlier, on the named

defendant's receipt, before service of the

official process, of a ‘courtesy copy' of the

filed complaint faxed by counsel for the

Plaintiff?

We read Congress' provisions for

removal in light of a bedrock principle: an

individual or entity named as a defendant is

not obliged to engage in litigation unless

5

notified of the action, and brought under a

Court's authority, by formal process.

Accordingly, we hold that a named

defendant's time to remove is triggered by

simultaneous service of the summons and

complaint, or receipt of the complaint,

‘through service or otherwise,’ after and apart

from service of the summons, but not by mere

receipt of the complaint unattended by any

formal service." Murphy Brothers, 143 L.Ed.

2d at 455 (1999).

Respondent Transamerica removed this matter to this

Court prematurely as such removal did not come within the

thirty (30) day period after service, as is required by the

statute and Murphy Brothers. Respondent argues several

inconsistent theories as justification.

First, Respondent filed an “Amended Notice Of

Removal." When a Notice of Removal is filed, it is filed in

the court in which the target case is pending. When the clerk

of that court (in this case State Court of Cobb County)

receives such a Notice of Removal, the clerk of that Court

transfers responsibility for the case to the United States

District Court. That is what removal is all about -

transferring the case from the State Court to the Federal

Court. Thus, after a case has been removed to the Federal

Court, as had already occurred in the case at bar, it would be

a useless act to "remove it again" as was attempted by

Respondent.

\

The real question presented is whether or not the case

was properly removed by Transamerica in the first place.

Petitioners respectfully submit that, for the reasons pointed

out previously, Transamerica filed its Notice Of Removal out

6

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of time. Thus, the removal itself (not the Notice of Removal

document) is defective.

The Orders denying Petitioners’ Motion to Remand

and Motion for Reconsideration ignore both the Murphy

Brothers decision of the Supreme Court and the plain

language of the removal statute, as that statute now has been

interpreted by the Supreme Court which now, according to

Murphy Brothers, says:

"The notice of removal of a civil action or

proceeding shall be filed within thirty days

after the receipt by the defendant, [by service

of process], of a copy of the initial pleading

setting forth the claim for relief upon which

such action or proceeding is based." 28

U.S.C. § 1446(b). (Emphasis supplied).

The key element of this aspect of the issue is

interpretation of the words "within thirty days after receipt by

the defendant." If those words mean that the time for filing

the notice of removal begins upon obtaining a copy by mail,

than the defendant has thirty (30) days from receipt by mail

to file the notice of removal. Alternatively, if those words

mean that there has to be service before the thirty (30) day

period begins, defendant would have a window beginning

August 30, 1999 (actual date of service) and ending

September 30, 1999 to file a removal petition. This Court

has decided this issue in such a manner as to create a thirty

(30) day window for removal beginning with formal service.

Specifically, this Court found that the service of the

Summons and Complaint triggers the beginning of the thirty

(30) day removal period. Murphy Brothers, 143 L.Ed. 2d at

457-460.

Respondent argued below that, because it had not

raised service as a defense in its answer, the above would not

apply to it in this case. However, Respondent ignores the

following statement from the Murphy Brothers opinion:

"Unless a named defendant agrees to

waive service, the summons continues to j

function as the sine qua non directing an

individual or entity to participate in a civil

action or forego procedural or substantive :

rights." Murphy Brothers, 143 L.Ed. 2d at

457.

While it is true that the Respondent in this case did

not raise service as an affirmative defense in its answer, the

Respondent took no action to affirmatively waive lack of

service as a defense which would preclude it from raising

lack of service as a defense in a later motion or other

pleading. (See Answer of Defendant). In the Notice of

Removal itself, Respondent Transamerica states as follows:

"he

Transamerica has not been served

with a summons and complaint, although

Transamerica received a copy of the

complaint by mail from plaintiff's attorney on

July 7, 1999." (See § 2, Notice of Removal to

the United States District Court). (Doc.1-

Pg.1).

It is clear that Respondent has not "waived" service,

and had certainly not done so at the time of filing the Notice

Of Removal, based upon the above quotation. Given that the

Respondent filed the removal petition before the window for

filing same had appeared, Respondent did not properly

8

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remove this case to the District Court, and the case should

have been remanded.

Prior to the decision of this Court in Murphy Brothers

there was a split among the various Circuits about whether

the removal period began running with "receipt" of the

Summons and Complaint or actual "service" of the Summons

and Complaint. In fact, the Murphy Brothers case came from

the Eleventh Circuit which had previously held that the time

for removal began running with the receipt of the Summons

and Complaint, rather than with actual service. See Murphy

Brothers, Inc. v. Michetti Pipe Stringing, Inc., 125 F. 3d 1396

(11th Cir. 1997). This Court answered the "receipt versus

service" question by reversing the Eleventh Circuit and

stating that the time for removal began running with service,

not receipt. The Orders denying Plaintiffs Motion for

Remand and Motion for Reconsideration interpret the code

section at issue in a manner inconsistent with the

interpretation of this Court in Murphy Brothers. 28 U.S.C. §

1446(b), as interpreted by this Court in Murphy Brothers,

establishes the time frame during which removal must occur.

It is axiomatic that statutes are to be strictly

construed. The District Court fails to follow this mandate, by

completely ignoring the language of 28 U.S.C. § 1446(b)

which requires that the Notice of Removal "shall be filed

within thirty days after receipt by the Defendant... of a copy

of the initial pleading....". (Emphasis supplied). The United

State Supreme Court has interpreted "receipt" to mean receipt

by service of process. Thus, the removal must take place

after service of process.

The statute gives the Defendant thirty (30) days to file

a Notice of Removal. The Order of the District Court

(affirmed without comment by the Panel Decision)

9

effectively gives the Defendant more than thirty (30) days to

file a Notice of Removal, a direct contradiction to the plain

language of § 1446(b). This defect is highlighted when one

examines the actions of Respondent in this very case.

Respondent filed its initial Notice of Removal on July 30,

1999 and its Amended Notice of Removal in the State Court

of Cobb County on September 17, 1999 forty-eight (48) days

apart.

Petitioners have attached a copy of the panel decision

of the Eleventh Circuit in the instant case to this Petition for

the convenience of this Court. No reference appears

anywhere in the panel decision to the removal issue. In order

for lawyers to properly do their jobs they must rely on legal

research which yields the case law which tells them what to

do. Petitioners relied upon the decision of the United States

Supreme Court in Murphy Brothers in the instant litigation.

The unpublished Order of the trial court denying the Motion

to Remand and the unpublished Order of the trial court

denying Petitioners’ Motion for Reconsideration appear to be

in direct conflict with the opinion issued by this Court in

Murphy Brothers. The lawyers and trial judges of the

Eleventh Circuit (indeed of the entire nation) need guidance

from this Court as to the proper interpretation of Murphy

Brothers. Petitioners respectfully request that this Court

grant Petitioners’ Petition for Certiorari and issue an opinion

which can be used by the trial courts and the members of the

bar as guidance.

10

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CONCLUSION

Angela McAfee, individually and on behalf of her

three children, David, Brandon and Michael, respectfully

requests that this Court grant the Writ of Certiorari and that

this Court reverse the decision of the United States Court of

Appeals for the Eleventh Circuit and remand the matter to

the State Court of Cobb County.

| Ronald Arthur Low SF

TY

Attorney for Petitioners

Georgia State Bar No. 460350

P.O. Box 3005

Marietta, Georgia 30061

(770) 427-8468

1]

APPENDICES

APPENDIX “A”

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-14320

D.C. Docket No. 99-01975-CV-CAP-1

ANGELA MCAFEE, individually and as next friend of,

as natural guardian of, and as guardian of the property

of DAVID RUSSELL MCAFEE, JR., BRANDON

CHARLES MCAFEE, AND MICHAEL CHASE

MCAFEE, minors,

Plaintiff-

Appellant,

versus

TRANSAMERICA OCCIDENTAL LIFE

INSURANCE COMPANY,

Defendant-

Appellee.

Appeal from the United States District Court for the

Northern District of Georgia

(March 27, 2001)

Before BARKETT, HILL and KRAVITCH, Circuit Judges.

PER CURIAM:

Appellant, Angela McAfee, wife of the decedent-

insured, David Russell McAfee, appeals the district court

order denying her Employment Retirement Income

Security Act claim against Appellee, Transamerica

A-!

Insurance Company, alleging that Transamerica wrongfully

denied her claim for death benefits under her husband’s

accidental death insurance policy-on the grounds that his

death in a police shooting could not be deemed an

“accident” pursuant to the policy under the circumstances

presented. We find no reversible error in_ this

determination.

AFFIRMED

Ht Ie teal team eis st OR LAREDO ART ain

eee ee ee ed

APPENDIX “B”

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-14320-II

ANGELA MCAFEE, individually and as next friend of,

as natural guardian of, and as guardian of the property

of DAVID RUSSELL MCAFEE, JR., BRANDON

CHARLES MCAFEE, AND MICHAEL CHASE

MCAFEE, minors,

Plaintiffs-

Appellant,

versus

TRANSAMERICA OCCIDENTAL LIFE

INSURANCE COMPANY,

Defendants-

Appellee.

On Appeal from the United States District Court or the

Northern District of Georgia

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

(Opinion 11" Cir. 19, F.2d ).

Before: BARKETT, HILL and KRAVTICH, Circuit

Judges.

PER CURIAM:

B-1

The Petition(s) for Rehearing are DENIED and no member

of this panel nor other Judge in regular active service on the

Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Petition(s) for

Rehearing En Bane are DENIED.

ENTERED FOR THE COURT:

/s/ Rosemary Barkett

UNITED STATES CIRCUIT JUDGE

APPENDIX “C”

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Case No. 1:99-CV-01975-RLV

ANGELA MCAFEE,

Plaintiff,

V.

TRANSAMERICA OCCIDENTAL LIFE

INSURANCE COMPANY,

Defendant.

ORDER

The plaintiff initiated the instant action against

Transamerica Occidental Life Insurance Company

(hereinafter “Transamerica”] in the State Court of Cobb

County, Georgia, on July 1, 1999. On July 30, 1999,

Transamerica filed a Notice of Removal in this court on the

grounds that federal question jurisdiction exists and,

alternatively, that there is diversity jurisdiction. This

matter is currently before the court on the plaintiff's motion

to remand to the State Court of Cobb County. For the

reasons set forth below, the court hereby DENIES the

plaintiffs motion.

I. FACTUAL BACKGROUND AND

PROCEDURAL HISTORY

The plaintiff brought this action against

Transamerica to recover accidental death benefits for the

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death of her husband, David McAfee. David McAfee was

insured under a group policy issued by Transamerica to his

employer, Lockheed Martin Corporation, for basic

accidental death benefits of $50,000 and optional accidental

death benefits of $950,000. The policy specifically

excluded from coverage any loss “caused or resulting

from” the following conditions:

A. Intentionally self-inflicted injuries;

B. Suicide or any attempted suicide, while sane

or insane; ...

Ri Illness, disease, bodily or mental infirmity or

any related treatment (bacterial infection

resulting from an accidental bodily injury or

accidental ingestion or a _ poisonous

substance shall not be excluded); ...

On or about May 11, 1998, David McAfee was shot

and killed in an exchange of gunfire with police officers.

The plaintiff filed a claim with Transamerica to recover

accidental death benefits under the policy, contending that

her husband’s death was an accidental death under the

policy. In reviewing the plaintiff's claim, Transamerica

concluded that Mr. McAfee’s death resulted from his

intentional acts, rather than from accidental bodily injury,

and was therefore excluded from coverage. Transamerica’s

decision was communicated to the plaintiff by letter dated

October 15, 1998, which advised the plaintiff of her right to

request an administrative review of the claims decision and

to submit additional information in support of her claim

within sixty days.

On December 18, 1998, the plaintiff requested an

administrative appeal. The plaintiff submitted additional

information for Transamerica’s consideration, including a

videotape of the shootout resulting in Mr. McAfee’s death,

the medical examiner’s report, and an investigator’s report.

se OT Ie © ae eee SIE RC

After reviewing this additional information. Transamerica

confirmed its decision to deny the claim for benefits.

On July 1, 1999, the plaintiff commenced this

action in the State Court of Cobb County, Georgia, seeking

recovery of benefits under the policy plus a penalty and

attorney fees. Transamerica received a copy of the

complaint by mail from the plaintiffs attorney on July 7,

1999, but no formal service was effected at that time. On

July 30, 1999, Transamerica filed a Notice of Removal in

this court. On August 30, 1999, the plaintiff filed a motion

to remand to sate court, asserting that the notice of removal

was defective because it was issued prior to service and,

therefore, not within the thirty day time period set forth in

28 U.S.C. § 1446.

Transamerica was formally served on August 30,

1999. Eighteen days later, on September 17, 1999,

Transamerica filed an Amended Notice of Removal in this

court. The plaintiff maintains that the case should be

remanded to the State Court of Cobb County, Georgia,

because, according to the plaintiff, the Original notice of

removal was defective as premature and cannot be

remedied by the defendant’s filing of an amended notice of

removal within thirty days of formal service.

Il. LEGAL DISCUSSION

A defendant electing to remove a case from state to

federal court must follow certain procedural requirements

as set out in 28 U.S.C. § 1446. Those requirements include

filing a notice of removal within thirty days after the

defendant receives a copy of the plaintiff's initial pleading.

Section 1446, therefore, limits the period in which a

defendant may exercise his right of removal. As section

1446(b) states in part:

Ge

The notice of 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.

A defect in removal procedure, such as an untimely notice

of removal, will support a district court’s remand of a

removed case to state court. 28 U.S.C. § 1447(c). Further,

under section 1447 (c), a district court must remand an

action to state court if it finds that federal subject matter

jurisdiction 1s lacking.

Prior to 1999, there was a question among federal

courts as to when the thirty day period for filing a notice of

removal commenced. Some courts had held that it did not

begin to run until the defendant received notice of the

complaint through formal service of process. Other courts,

including the Eleventh Circuit, had held that the thirty day

period began to run once the defendant received any copy

of the complaint from the plaintiff, including a faxed, filed-

stamped copy or “courtesy” copy. See, e.g., Michetti Pipe

Stringing, Inc. v. Murphy Brothers, Inc., 125 F.3d 1396

(11" Cir. 1997), reversed, U.S. _, 119 S. Ct. 1322

(1999). The United States Supreme Court answered this

question in Murphy Brothers by holding that only formal

service of the complaint, or a summons where service of

the complaint is not required, will trigger the running of the

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thirty day period, not a defendant’s receipt of a courtesy

copy of the complaint in the absence of formal service. '

In the present case, the plaintiff has asked this court

to remand her case to state court on the basis that the

defendant’s removal of the case to federal court was

incurably defective. First, this court notes that after a

careful review of the law in this area, including an

examination of the cases which the plaintiff has cited, it

does not find any support for the contention that a notice of

removal filed prior to the running of the thirty day period is

procedurally defective.” Further, even if this court were to

hold that the defendant’s first notice of removal was

defective, the amended notice of removal, which the

defendant filed within thirty days after receipt of formal

service, would have effectively cured that defect. Finally,

the court notes that policy considerations would not support

a remand in this case, as there is no harm to the plaintiff

occasioned by a premature notice of removal.’ -The court

holds that the notice of removal was timely and proper.

Il. CONCLUSION

For the foregoing reasons, the court hereby

DENIES the plaintiff's motion to remand.

' Murphy Brothers simply established the beginning point for the thrity

day period, beyond which removal was not permitted; it did not hold,

as suggested by the plaintiff, that removal could not be effected prior to

the beginning of that thirty day period.

On the other hand, as the defendant pointed out, there is at least one

federal court which has expressly held that the “premature” removal of

a case, which is otherwise properly removable to federal court, does not

warrant a remand to state court. See Media Corp. v. Digiovanna, 1994

WL 268250 (E.D. Penn., June 14, 1994). The court disagrees with the

plaintiffs contention that this case was overruled by Murphy Brothers.

> The plaintiff has not argued in her motion for remand that this court

lacks subject matter jurisdiction to entertain the case.

C-5

SO ORDERED, this 8™ day of October, 1999.

/s/

Robert L. Vining, Jr.

Senior United States District Judge

C-6

APPENDIX “D”

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Case No. 1:99-CV-1975-JEC

ANGELA MCAFEE,

Plaintiff(s),

"i

TRANSAMERICA OCCIDENTAL LIFE

INSURANCE COMPANY,

Defendant(s).

ORDER

The above entitled action is presently before the

Court on Plaintiff's Motion For Reconsideration [13]. No

response has been filed, pursuant to Local Rule 7.1B.

IT IS HEREBY ORDERED that Plaintiff's Motion

for Reconsideration [13] is DENIED.

SO ORDERED, this 16 day of NOVEMBER, 1999.

/s/

Julie E. Carnes

United States District Judge