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The memorandum opinion from the United States District Court for the Eastern District of Pennsylvania in Purcell v. State Farm Mut. Auto. Ins. Co., NO. 11-7004 (E.D. Pa.) from February 10, 2012 discusses an important issue on the timeliness of filing Motions to Dismiss in federal court after a case is removed from state court. The Purcell case arises out of a car accident and the insured filed a claim in state court against her insurer State Farm for unpaid underinsured motorist benefits. As part of the Complaint the insured sought counts for breach of contract, statutory bad faith under Section 8371 and bad faith for violations of the Unfair Trade Practices Act. The case was removed from state court to federal court and then six days later State Farm filed a Motion to Dismiss.

Purcell, the insured, opposed the Motion to Dismiss by arguing that the Motion was not timely because under federal rule 12(a)it was not filed within 21 days after service of the complaint. However, the Court finds that since the action was removed from state court to federal court that Rule 81(c) applies which provides that State Farm had seven days after the notice of removal was filed to file the Motion to Dismiss. Since Rule 81 applies then the Motion was timely.

The court provides its analysis and the difference between answering under Rules 12 and 81 of the Federal Rules of Civil Procedure. There is clearly a difference in timing to answer when a case is removed.

For a copy of the Court’s opinion please contact Scott Cooper at SchmidtKramer Injury lawyers in Harrisburg.

Scott B. Cooper
Schmidt Kramer PC
209 State Street
Harrisburg, PA 17101
(717) 232-6300 – Telephone
(717) 232-6467 – Facsimile

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