Suson v. Progressive Direct Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-00089-KAS
S.S.,1 a minor child, and
ROBIN SUSON, as next best friend,
Plaintiffs,
v.
PROGRESSIVE DIRECT INSURANCE COMPANY, a foreign corporation licensed to
conduct business in Colorado,
Defendant.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiffs’ Unopposed Motion for Remand
[#10] (the “Motion”). Plaintiffs assert that Defendant’s Notice of Removal [#1] was
untimely filed, thus removal was improper. See Motion [#10] at 5. Defendant does not
oppose the relief requested. Id. at 1 (conferral statement).
Pursuant to 28 U.S.C. § 1446(b), a “notice of removal of a civil action or proceeding
shall be filed within 30 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.” Under 28 U.S.C. § 1447(c), a litigant may move to remand
the case “on the basis of any defect other than lack of subject matter jurisdiction” within
30 days of the notice of removal’s filing. “A defendant’s untimeliness in filing his notice of
removal is ‘precisely the type of removal defect contemplated by § 1447(c).” Garrett v.
1 Pursuant to Fed. R. Civ. P. 5.2(a)(3), in court filings containing “the name of an individual known
to be a minor”, “the filing may include only: . . . the minor’s initials[.]”
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2
Cook, 652 F.3d 1249, 1254 (10th Cir. 2011) (quoting Things Remembered, Inc. v.
Petrarca, 516 U.S. 124, 128 (1995)); see also Huffman v. Saul Holdings, Ltd., 194 F.3d
1072, 1077 (10th Cir. 1999) (“The failure to comply with [§ 1446(b)’s] express statutory
requirements for removal can fairly be said to render the removal defective and justify a
remand.”).
Here, Defendant was served a copy of the Complaint, Summons, and Civil Case
Cover Sheet on December 6, 2024. See Affidavit of Service [#5]. On December 23, 2024,
in state court, Defendant moved for an extension of its responsive pleading deadline,
which the court granted. See Mot. for Extension of Time [#1-10]; Order [#1-11]. However,
Defendant did not request, and the state court did not grant, a similar extension to the
removal deadline. See Order [#1-11]. Thus, the removal deadline remained January 5,
2025. See, e.g., Crouch v. Roberts Enters. Invs., Inc., No. 20-cv-0988 SMV/CG, 2021 WL
371517, at *2 (D.N.M. Feb. 3, 2021) (stating that an extension of the responsive pleading
deadline did not automatically include an extension of the removal deadline “because the
two deadlines are not interchangeable”). However, Defendant did not file a Notice of
Removal [#1] until January 10, 2025, exactly 35 days after it was served. The Court finds
that Defendant’s Notice of Removal is untimely and therefore defective, and upon
Plaintiffs’ request, the Court must remand this case to Colorado state court. Moreover,
given Defendant’s non-opposition to the relief sought,
IT IS HEREBY ORDERED that this case shall be assigned to a District Judge
under D.C.COLO.LCivR 40.1(a) and D.C.COLO.LCivR 40.1(c)(8).
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IT IS HEREBY RECOMMENDED2 that the Unopposed Motion for Remand [#10]
be GRANTED and that this case be remanded pursuant to 28 U.S.C. § 1447(c) on the
basis of defective removal.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge's findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: January 27, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
2 Pursuant to D.C.COLO.LCivR 72.3(a), motions to remand are dispositive motions.
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