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Tarutis v. Mahaffie

January 26, 2006

MICHAEL J. TARUTIS, PLAINTIFF,
v.
DAN L. MAHAFFIE, MARK MATARESE, AND FRONTIER GROUP, DEFENDANTS.



The opinion of the court was delivered by: Judge Edward W. Nottingham

ORDER REMANDING CASE

This matter is before the court on the motion of Plaintiff Michael J. Tarutis to remand the case to state court (#12). The case must be remanded, although not for the reasons cited by Mr. Tarutis. The Notice of Removal itself discloses that the latest date on which any Defendant was served was October 27, 2005. The notice of removal was not filed until December 5, 2005. This violates the removal statute, which provides:

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.

28 U.S.C. s 1446(b). Evidently, Defendants were untimely, since they at first tried to remove the case to a federal court in California, in violation of 28 U.S.C. s 1446(a). That is no excuse, and it does not toll Defendants' time to make a timely removal. Since the notice of removal was not timely filed, it is

ORDERED that the case be REMANDED to the Douglas County (Colorado) District Court.

Dated this 26th day of January, 2006.

EDWARD W. NOTTINGHAM United States District Judge

20060126

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