Summary
tolling thirty-day deadline under Section 1447(c) because of 28-day delay in serving plaintiffs with notice of removal
Summary of this case from Bank of N.Y. Mellon Corp. v. FischerOpinion
No. 00 Civ. 6572 (AGS) (FM).
January 10, 2001.
MEMORANDUM OPINION AND ORDER
I. Introduction
This personal injury action arises out of an automobile accident in the Bronx on August 2, 1997. After the plaintiffs, Lloyd Byfield and Linda Forsythe ("Plaintiffs"), commenced their action in Supreme Court, Bronx County, defendant Marina Niaz ("Defendant") removed it to this Court, pursuant to 28 U.S.C. § 1446, on the basis of diversity jurisdiction. The Plaintiffs' have now moved to remand the action to state court on the theory that the removal was untimely. For the reasons set forth below, the motion to remand is granted.
II. Relevant Facts
The relevant facts do not appear to be in dispute. On July 24, 2000, the Sheriff of Somerset County, New Jersey, served the Defendant personally with a copy of the state court summons and complaint. (Affirm. of Edward Zaloba, Esq., dated October 20, 2000 ("Zaloba Affirm. II"), ¶ 3; Aff. of Richard T. Sules, Esq., dated August 30, 2000 ("Sules Aff."), ¶ 2). Thereafter, on September 1, 2000, Defendant filed a Notice of Removal in this Court. (Zaloba Affirm. II ¶ 6; Sules Aff. ¶ 2). The Notice of Removal incorrectly states that service was affected on August 8, 2000.
The date on the Sules opposition affidavit is clearly a typographical error since the motion itself was not filed until October 12, 2000, at the earliest.
On September 28, 2000, nearly one month after this action was removed, the Defendant served Plaintiffs by mail with a copy of the Notice of Removal. (See Certificate of Service [Docket No. 4]; Zaloba Affirm. II ¶ 7). Plaintiffs actually received that copy of the Notice of Removal the following day, September 29th, which was a Friday. (Zaloba Affirm. II ¶¶ 7, 9). Seven days earlier, on September 21st, Plaintiffs' counsel was advised by my law clerk that the action had been removed. (See Affirm, of Edward Zaloba, dated Oct. 11, 2000 ("Zaloba Affirm. I"), ¶ 10).
On October 12, 2000, 1 held a Rule 16(a) initial pretrial scheduling conference after this case was referred to me for general pretrial supervision. At that conference, Plaintiffs' counsel suggested that Defendant's Notice of Removal was untimely and handed up certain papers requesting that the case be remanded to state court.
Plaintiffs' papers later were supplemented on October 23, 2000 by the filing of a Notice of Motion to Remand to State Court. That same day, Defendant's counsel filed an opposition affidavit in which he contended that the motion to remand was untimely.
II. Discussion
A. Timeliness of Motion
Under 28 U.S.C. § 1447(c), "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446." If a party fails to make such a timely motion to remand, it waives its right to contest the removal. Hamilton v. Aetna Life and Cas. Co., 5 F.3d 642, 643 (2d Cir. 1993) (per curiam).
In this case, Plaintiffs motion to remand does not contest subject matter jurisdiction and, therefore, was subject to waiver if untimely. Moreover, it is undisputed that the remand motion was made at least forty-two days after the Notice of Removal was filed. While this ordinarily would suggest that the motion was untimely, in this case Plaintiffs first received written notice of the removal more than four weeks after the action had been removed. In addition, the copy of the Notice of Removal was received on a Friday, only one day before the deadline for filing a motion to remand. As a consequence of the Defendant's delayed notice, Plaintiffs therefore were afforded less than one business day to prepare and file their motion for remand after receiving formal notice of the removal.
Significantly, despite ample opportunity, Defendant has failed to offer any explanation for the 28-day delay in serving Plaintiffs with a copy of the Notice of Removal. Indeed, even if the Plaintiffs were deemed to have had constructive notice of the removal on September 21st, Defendant's counsel has failed to explain why he failed to provide any notice of the removal during the three prior weeks.
In these circumstances, it is appropriate that the statutory time period for filing a remand motion be equitably tolled for a minimum of three weeks. See e.g., Doyle v. Staples, No. 99-CV-6062, 2000 WL 194685, at * 2 (E.D.N.Y. Feb. 18, 2000) (Gleeson, J.) (tolling Section 1447(c)'s thirty-day deadline because of two and one-half month delay in providing notice); Jackson v. City of New Orleans, No. 95-1340, 1995 WL 599046, at *2 (E.D.La. Oct. 10, 1995) (remanding due to defendant's failure to give notice of removal for more than two months). Plaintiffs' remand motion therefore is timely, whether the motion is considered to have been filed on October 12, 2000, when Mr. Zaloba handed up his affidavit at the conference, or on October 23, 2000, when the formal Notice of Motion was filed.
The 30-day period in which the motion to remand was required to have been filed would ordinarily have expired on October 1, 2000. A 21-day extension of that period would extend the deadline to October 22, 2000, which was a Sunday. The Notice of Motion was filed the following day. See Fed.R.Civ.P. 6(a) (extending any deadline for filing papers which falls on a Sunday to the first non-holiday).
2. Timeliness of Removal
A defendant in a diversity action may remove the action "to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The notice of removal must be filed "within thirty 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." Id. § 1446(b). In Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322, 1325, 143 L. Ed.2d 448 (1999), the Supreme Court held that "a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, 'through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service." Consequently, when the summons and complaint are served together, the thirty-day period in which an action may be removed begins to run at once. Id. at 354, 119 S.Ct. at 1328.
"Because the party seeking to remove the action bears the burden of establishing federal jurisdiction, it is the removing party who must convince this Court that removal was proper." Quinones v. Minority Bus Line Corn., 98 Civ. 7167, 1999 WL 225540, at *2 (S.D.N Y Apr. 19, 1999) (citing Mermelstein v. Maki, 830 F. Supp. 180, 184 (S.D.N.Y. 1993)). The defendants therefore bear the burden of demonstrating that their removal of this action was timely.
Here, the undisputed facts show that the Defendant's Notice of Removal was filed in this Court thirty-nine days after the Sheriff personally served the state court summons and complaint. Accordingly, the removal was not timely and the action must be remanded See e.g., Hallenbeck v. Transgas, Inc., 53 F. Supp.2d 543, 544 (N.D.N.Y. 1999) (remanding action removed thirty-one days after service of summons and complaint); Bertrand v. Vingan, 899 F. Supp. 1198, 1199 (S.D.N.Y. 1995) (Parker, J.) (remanding because removal untimely); Adler v. Adler, 862 F. Supp. 70, 71 (S.D.N.Y. 1994) (Broderick, J.) (same).
III. Conclusion
The Plaintiffs' motion for remand is granted and this action is remanded to state court.
SO ORDERED.