Opinion
No. 03 Civ 5245(RLC).
August 25, 2005
CORPORATION COUNSEL OF THE CITY OF NEW YORK, Eric Proshansky, Esq., Assistant Corporation Counsel, New York, New York, Attorney for Plaintiff.
MARSHALL, CONWAY WRIGHT, P.C., Kenneth P. Horenstein, Esq., Of Counsel, New York, New York, Attorney for Defendant.
OPINION
Plaintiff City of New York (the "City") moves for remand of the present action pursuant to 28 U.S.C. § 1447 on the ground that defendant General Star Indemnity Company ("General Star Indemnity") filed its notice of removal more than thirty days after receipt of the summons and verified complaint, thereby failing to comply with 28 U.S.C. § 1446(b). The City also seeks an award of attorneys' fees relating to the expense of litigating the remand pursuant to 28 U.S.C. § 1447(c).
BACKGROUND
The City originally commenced this action against defendant General Star Indemnity by filing a summons and verified complaint in Supreme Court New York County on June 10, 2003. In the complaint, the City alleged that General Star Indemnity was obligated to defend and indemnify the City pursuant to a general liability policy between the parties and was liable for the City's accrued defense costs. The City's affidavit of service indicates that the City served copies of the summons and verified complaint upon General Star Indemnity on June 12, 2003, at One Liberty Plaza, New York, New York.
On July 16, 2003, more than thirty days after the City's alleged date of service, General Star Indemnity filed a notice of removal with the Clerk of the United States District Court for the Southern District of New York removing this action from the Supreme Court of New York, New York County to Federal court. The City contends notice of removal was untimely under 28 U.S.C. § 1446(b).
The notice of removal of a civil action or proceeding shall 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C.A. § 1446(b).
General Star Indemnity maintains that the City never properly served it with the summons and complaint and that, instead, the City served General Star Management Company ("General Star Management"), the underwriting manager for General Star Indemnity. Such service, it argues, does not constitute service on General Star Indemnity. Furthermore, General Star Indemnity claims that it did not receive a copy of the pleadings in its Stamford, Connecticut office until June 17, 2003. Thus, it contends, its July 16, 2003 notice of removal was made within the requisite thirty days.
DISCUSSION
A defendant seeking removal of a civil action from State court must file a notice of removal within thirty days after receiving the initial pleadings, through service or otherwise. 28 U.S.C. § 1446(b). Failure to file notice of removal within the thirty-day period requires denial of the petition for removal. See Bertrand v. Vingan, 899 F.Supp. 1198, 1199 (S.D.N.Y. 1995) (Parker, J.) (noting that a defendant seeking a removal must strictly comply with the statutory requirements and that where there is doubt the case should be remanded). Moreover, the party seeking removal of the action bears the burden of convincing the court that removal is proper. See R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979) (removing party must show its right to a federal forum by competent proof).
General Star Indemnity must thus establish that its July 16, 2003 notice of removal was not time barred. To do so, it must demonstrate that service by the City on June 12, 2003 at One Liberty Plaza did not constitute service on General Star Indemnity. Despite the burden it carries on the issue, General Star Indemnity offers little beyond unsubstantiated conclusory statements to bolster its position. See Cornell v. Assicurazioni Generali S.p.A., 2000 WL 1099844, * 1 (S.D.N.Y. 2000) (Mukasey, J.) ("Legal conclusions done up as factual allegations are not facts and cannot substitute for facts") (citation omitted). General Star Indemnity simply states that service at One Liberty Plaza was effectuated upon General Star Management, not General Star Indemnity, but fails to establish that a meaningful distinction between the two exists for service purposes.
The City, by contrast, has submitted numerous facts tending to establish that service at One Liberty Plaza was indeed service on General Star Indemnity. The City notes that General Star Indemnity holds itself out as having both offices and personnel at One Liberty Plaza. For example, a directory of the General Re Corporation, the parent company of both General Star Management and General Star Indemnity, lists the two companies as a single block of companies and indicates that both have branch offices in "Atlanta, Chicago, Dallas, Los Angeles and New York." Pl. ex A (emphasis added). Moreover, in documents submitted to the court, at least two of General Star Indemnity's employees, James Richardson and Brian May, are listed as located at One Liberty Plaza.
Mr. Richardson is a vice-president and branch manager and Mr. May is an assistant secretary. Both therefore also qualify as "an officer, director, . . ., or cashier or assistant cashier" of General Star Indemnity for service purposes under CPLR § 311.
Moreover, the City actually served General Star Indemnity at One Liberty Plaza in a prior case, without protest, and was expressly informed that One Liberty Plaza was an appropriate place for such service. Bugg-Levine Decl. at ¶¶ 4-6. General Star Indemnity has neither refuted these facts nor offered additional information to convince the court that service at One Liberty Plaza was improper. Thus, given that General Star Indemnity is deemed to have been served on June 12, 2003, its July 16, 2003 notice of removal is time barred under 28 U.S.C. § 1446(b).
The City also seeks an award of attorneys' fees relating to the expense of litigating remand pursuant to 28 U.S.C. 1447(c). General Star Indemnity's untimely removal of this case has delayed a relatively simple state law declaratory judgment claim and added unnecessary litigation expense. General Star Indemnity should bear the costs attendant to this delay. See Shamoun v. Peerless Importers, 2003 WL 21781954, *1 (E.D.N.Y.) (remanding case to state court pursuant to § 1447 and granting plaintiff's request for attorneys' fees and costs).
The statute states in pertinent part, "an order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. 28 U.S.C.A. § 1447(c).
CONCLUSION
General Star Indemnity's notice of removal is time barred under 28 U.S.C. § 1446(b). The City's motion for remand, including its request for attorneys' fees, is hereby granted. The Court of the Clerk is hereby directed to remand the action to New York Supreme Court, New York County. The City is directed to submit their application for fees by October 3, 2005. Any response by General Star Indemnity shall be submitted by October 17, 2005. Any reply to General Star Indemnity's response shall be submitted by October 31, 2005.
IT IS SO ORDERED.