Countryman v. Farmers Insurance Exchange
2011 U.S. App. LEXIS 9499
| 10th Cir. | 2011Background
- Defendants removed a Colorado state case to federal court under CAFA and later moved to remand.
- The joint removal notice attached all process, pleadings, and orders served on Farmers but omitted the summons for co-defendant Mid-Century.
- Plaintiff moved to remand, arguing the omission was a defect under § 1446(a) and not curable.
- The district court remanded, holding the omission was a fatal removal defect due to strict § 1446(a) compliance.
- The district court’s remand order was vacated on appeal, and the case was remanded for proceedings consistent with this opinion.
- This court holds the omission of Mid-Century’s summons was a de minimis, curable procedural defect, not requiring remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of a co-defendant's summons is a remandable defect | Countryman argued omission is fatal under § 1446(a). | Farmers and Mid-Century argued omission is de minimis and curable. | Omission is a de minimis, curable defect; remand not required. |
| Whether the defect was curable before or after the removal period | Omission cannot be cured after removal period to avoid remand. | Defect could be cured by supplementation, within or after the period. | Defect was curable either before or after the thirty-day period. |
| Whether the district court should consider CAFA's amount in controversy | District court did not address amount in controversy; remand improper. | Issue permissible on remand and not resolved here. | Remand vacated; issue to be addressed on remand. |
Key Cases Cited
- Cook v. Randolph County, 573 F.3d 1143 (11th Cir. 2009) (failure to attach all papers may be a remandable defect)
- Riehl v. Nat'l Mut. Ins. Co., 374 F.2d 739 (7th Cir. 1967) (omission is a minor irregularity not depriving jurisdiction)
- Covington v. Indemnity Ins. Co., 251 F.2d 930 (5th Cir. 1958) (missing papers are a mere procedural defect, curable later)
- AIMCO v. Nutmeg Ins. Co., 593 F.3d 1188 (10th Cir. 2010) (district court may address CAFA issues on remand)
- Yellow Transp., Inc. v. Apex Digital, Inc., 406 F. Supp. 2d 1213 (D. Kan. 2005) (procedural defects in removal may be remedied)