The Tenth Circuit Court of Appeals recently held that remand is not required merely because a removing party fails to attach “a copy of all process, pleadings, and orders served upon [it],” as required by the removal statute, 28 U.S.C. § 1446(a). In Countryman v. Farmers Insurance Exchange, the defendants had filed a joint notice of removal pursuant to CAFA but failed to attach the summons served on one of the defendants. Shortly after the thirty-day removal period, the defendants supplemented their timely notice of removal with a copy of the missing summons. On the plaintiff’s motion to remand, the district court held that the removal statute required strict compliance and that the failure to file the summons served on one of the defendants at the time of removal defeated removal.
Following the majority view, the Tenth Circuit reversed and held that the missing summons was “a de minimis procedural defect that did not necessitate remand of the case to state court.” The court also found that “this de minimis procedural defect was curable, either before or after the expiration of the thirty-day removal period,” and that the defendants had in fact cured the problem when they supplemented their notice of removal with the missing summons. The court observed that the “[p]laintiff was not prejudiced by the [defendants’] omission,” and “[n]or was the district court’s ability to proceed with case materially impaired.” The plaintiff also argued that the defendants failed to establish the jurisdictional minimum under CAFA, but the court remanded for consideration of that issue because the district court had not addressed it in its prior order.
