JOHNSON v. LEVI STRAUSS CO., (W.D.Tex. 1998)

NANCY STEIN NOWAK, United States Magistrate Judge.

The matter before the Court is Plaintiff's Motion to Remand. The parties have consented to the Magistrate Judge conducting all proceedings in this case, including the trial and entry of judgment. Therefore, under 28 U.S.C. § 636(c) and the District Court's random assignment of this case to me, I have jurisdiction to enter this order.

On October 13, 1997, Charles Johnson filed this lawsuit against Levi Strauss Co., in County Court at Law Number 2 for Bexar County, Texas. In his state court petition, Johnson alleged that he is the beneficiary of a plan governed by the Employee Retirement Income Security Act (ERISA). Based upon the presence of a federal question under ERISA, Levi Strauss removed the case to this Court under 28 U.S.C. § 1441. Johnson now seeks remand to state court, asserting that because Levi Strauss received a copy of his state court petition more than thirty days before it removed the case to this Court, removal was untimely. I agree, and accordingly, will grant Johnson's motion.

Under 28 U.S.C. § 1446(b), a notice of removal must 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. . . ." Focusing on the plain language of this statute, and "the axiom that the removal statutes are to be strictly construed against removal," the Fifth Circuit has adopted the "receipt rule" to govern the time from which the thirty days begins to run. Under the receipt rule, removal must occur within thirty days after the defendant receives a pleading or other paper confirming that a removable case has been filed against it. Service of process is not necessary.

In this case, Levi Strauss concedes that in mid-October 1997, its Health Benefits Administrator, Rosie Oropeza, received a file-stamped copy of Johnson's state court petition attached to a letter from Johnson's counsel, but it did not remove the case until January 2, 1998. Levi Strauss argues, however, that it did not have adequate notice that the state court petition had been filed because the letter did not refer to the state court petition and Oropeza could not read part of the file-stamp. These facts are insufficient to establish that Levi Strauss did not have adequate notice that Johnson had filed a removable case. While the letter did not specifically point out that the lawsuit had been filed, it did indicate an enclosure. Oropeza obviously read the state court petition, because she claims that she could not read the information in the upper right hand corner of the petition: "I did not determine from these illegible markings that the Petition had been filed." Although part of the file stamp is difficult to read, the date and time of filing are clear. Furthermore, a case number has been stamped in the blank at the top of the petition, and a court assignment manually written in the case's caption. These facts were sufficient to give Levi Strauss notice that Johnson had filed his lawsuit, even if Oropeza could not read every word in the file stamp. Therefore, because Levi Strauss failed to remove this case within thirty days of the date it received a copy of Johnson's state court petition, removal was untimely, and the case must be remanded to state court.

For the reasons discussed above, the Plaintiff's Motion to Remand is GRANTED and the case is REMANDED to County Court at Law Number 2 for Bexar County, Texas.