Opinion
02 CIV. 6863 (DLC)
February 13, 2003
MEMORANDUM OPINION AND ORDER
Plaintiffs Perry Barnett and Amy Barnett ("plaintiffs" or "Barnetts") move to remand this action to state court, from which it was removed on August 28, 2002, on the ground that there is no subject matter jurisdiction over the action, and for an award of sanctions for the defendants' improper removal of the action.
This motion requires a determination of whether a portion of the removal statute — Title 28, United States Code, Section 1441(b) — defines the court's subject matter jurisdiction or describes merely a procedural hurdle to removal that can be waived. When the basis for the removal is the diversity of the parties, Section 1441(b) bars the removal of actions by a citizen of the state in which the federal court which receives the case is sitting. Concluding that this portion of Section 1441(b) is a procedural rule, the motions are denied.
The Barnetts are domiciliaries of Connecticut. They filed suit against Turner Construction Company and Atlantic 960 Corporation in New York Supreme Court on July 24, 2002, to recover damages for injuries suffered at a construction site in 2000. The defendants were served on August 1, 2002, and removed the action to this court within the thirty days required by the statute, on August 28. See 28 U.S.C. § 1446(b). Both of the defendants are New York corporations with their principal places of business in this state. Section 1441(b) bars defendants who are citizens of the state in which the action has been filed from removing the action to federal court. Nonetheless, the plaintiffs did not move to remand the action within the thirty day window prescribed by Title 28, United States Code, Section 1447(c), for all defects other than an absence of subject matter jurisdiction.
An initial pretrial conference was held on October 25, and a schedule was set for the litigation of the case, including the completion of discovery by April 25, 2003, and the filing of a Pretrial Order by May 23. On December 26, 2002, plaintiffs served the instant motion for remand on the ground that there was no subject matter jurisdiction over this action because the defendants are citizens of the state within which this Court sits.
The Honorable Henry Friendly decided this issue over thirty years ago in Woodward v. D.H. Overmyer Co., 428 F.2d 880, 882-83 (2d Cir. 1970). Noting that the existence of federal jurisdiction must be considered even on appeal, id. at 882, Judge Friendly relied on Supreme Court precedent from 1900 and a prior 2 opinion by the Honorable Learned Hand to conclude that the clause restricting removal in diversity actions to defendants who are not resident in the state where the action has been brought was not "jurisdictional in the true sense" and could be waived in the event that there was no timely request for a remand. Id. See also Handelsman v. Bedford Village Assocs. Ltd. P'ship, 213 F.3d 48, 50 n. 2 (2d Cir. 2000). Other Circuits have taken the same position. See Korea Exch. Bank, N.Y. Branch v. Trackwise Sales Corp., 66 F.3d 46, 50 (3rd Cir. 1995); Farm Constr. Serv., Inc. v. Fudge, 831 F.2d 18, 21-22 (1st Cir. 1987); Handley-Mack Co. v. Godchaux Sugar Co., 2 F.2d 435, 436-37 (6th Cir. 1924).
The plaintiffs rely on Hurt v. Dow Chemical Co., 963 F.2d 1142, 1145 (8th Cir. 1992). Hurt's contrary holding is not sufficient to cause this Court to reject the well-settled rule in this Circuit.
For these reasons, the motion to remand and for sanctions is denied.
SO ORDERED.