Bruce E. Void, Appellant v. J. Patricia Wilson Smoot and United States Parole Commission, Appellees

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United States Court of Appeals, District of Columbia Circuit.

Bruce E. Void, Appellant v. J. Patricia Wilson Smoot and United States Parole Commission, Appellees

No. 16-5367

Decided: November 08, 2017

BEFORE: Henderson, Kavanaugh, and Millett, Circuit Judges

ORDER

Upon consideration of the motion for summary affirmance, the response thereto, the reply, and the surreply, it is

ORDERED that the motion for summary affirmance be denied and, on the court's own motion, that the district court's orders entered March 7, 2016 and October 31, 2016 be summarily reversed. The parties' pleadings have placed the merits of this appeal before the court. Because the appropriate disposition is so clear, summary action is warranted. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). A notice of removal of a civil action must be filed “within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading[.]” 28 U.S.C. § 1446(b)(1). To the extent appellees argue service did not occur on December 14, 2015 or that the deadline should be equitably tolled because service of process was deficient, those arguments are raised for the first time on appeal, and the court declines to consider them. See U.S. v. Stover, 329 F.3d 859, 872 (D.C. Cir. 2003). Based on a service date of December 14, 2015, the deadline to file a notice of removal was January 13, 2016, and appellees' January 14, 2016 notice of removal was therefore untimely. See Fed. R. Civ. P. 6(a)(1). We accordingly vacate the denial of appellant's motion to remand to the District of Columbia Superior Court and remand the case to the district court with instructions to grant the motion.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam