Motorists Mutual Insurance v. Mathias

Stern, J. The third-party defendant’s motion to dismiss is well-taken due to the third-party plaintiff’s noncompliance with timely filing of the petition for removal. R.C. 2743.03 (E)(1) requires a petition for removal to be filed within twenty-eight days of the filing of the third-party plaintiff’s complaint in common pleas court. Filing is defined in Civ. R. 5(E) as “* * * filing them with the clerk of court * * *.” In this matter the petition for removal was filed with the Clerk of the Court of Claims on November 13, 1986, which is the thirtieth day following the filing of the third-party complaint. The Tenth District Court of Appeals has held that the Court of Claims has the authority to extend the time frame for filing a petition for removal if Civ. R. 6(B) is satisfied. State v. Reynolds (1982), 7 Ohio App. 3d 59, 7 OBR 71, 454 N.E 2d 154. Civ. R. 6(B) reads in relevant part: “(B) Time: Extension. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion * * * (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; * * *” The third-party plaintiff did not submit a motion requesting extension of the filing period as allowed by Civ. R. 6(B)(2). The court is constrained by the statute and rule and will not sua sponte grant leave to the third-party plaintiff to file such a motion. The motion for dismissal is hereby granted and the within action is remanded to the Tuscarawas County Common Pleas Court for further action as may be deemed appropriate by that court, pursuant to R.C. 2743.03 (E)(2) and C.C.R. 4(D), upon a finding that the removal petition does not justify removal. Motion to dismiss granted. Leonard J. Stern, J., retired, of the Supreme Court of Ohio, sitting by assignment.