Butner v. Neustadter

324 F.2d 783 (1963)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

D was temporarily in Los Angeles on business, and was personally served on a suit brought by Neustadter (P) as an assignee on a promissory note. D had ten days to answer. D contacted his attorney in Arkansas, with a name of a California attorney. D attended to the matter, but luck was not on his side during the 10 days. Missed connections and no response from P’s attorney left D on the eleventh day after service with a default judgment. D filed a petition to remove the action to federal court pursuant to 28 U.S.C. § 1446. D answered the complaint in federal court. D alleged that the note had been obtained by fraud and P was not a valid holder. D then filed a motion to set aside the default judgment that had been entered in the state court. The federal court refused, and D appealed. D contends that he is entitled to have the default judgment set aside as a matter of law upon removal to federal district court in that section 1446(b) gives a defendant the right to remove within twenty days after service of process. Rule 12 gives him twenty days within which to appear and plead.