Opinion
03 Civ. 8245 (CSH)
November 20, 2003
OPINION AND ORDER
The above captioned case is before this Court on a Notice of Removal entered by Defendant on October 17, 2003 pursuant to 28 U.S.C. § 1446. Plaintiffs filed their original complaint in this matter with the County Clerk of Bronx County, New York on September 8, 2003. Pursuant to New York Business Corporation Law § 306, Plaintiffs served Defendant with a summons and a copy of the complaint by filing these same with the Secretary of the State of New York on September 16, 2003. The motion presently before the Court is a Motion to Remand, filed by Plaintiff on October 24, 2003 pursuant to 28 U.S.C. § 1447. The time for Defendant to file a response has elapsed. Thus, I decide the Motion on Plaintiffs' papers alone. For reasons set forth below, the Motion to Remand is denied.
In the Notice of Removal, Bradley J. Levien, Esq., attorney for Defendant, avers in ¶ 2 that "[t]he Summons and Complaint, being the original process of this case, were first received by this defendant on September 18, 2003." It follows, though it is not stated, that Defendant believes that its October 17, 2003 Notice of Remand is timely under 28 U.S.C. § 1446(b), which requires that "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 . . ."
In the Affirmation that accompanies Plaintiffs' Motion for Remand, Mark B. Rubin, Esq., attorney for Plaintiffs, asserts that the summons and complaint were served on Defendant via the Secretary of the State of New York on September 16, 2003. In Exhibit B appended to their Motion, Plaintiffs provide an Affidavit of Service and a receipt from the Department of State in support of this contention. Counting from September 16, Plaintiffs contend that Defendant's Notice of Removal is not timely under 28 U.S.C. § 1446(b) and should, accordingly, be dismissed.
Both parties' representations regarding the salient facts seem to be accurate. Service of process appears to have been completed on September 16, 2003. The service accomplished was not personal, however. Service was made on the Secretary of the State of New York. Responsibility for delivering the summons and complaint then fell upon the Secretary. Defendant's claim that this duty was accomplished on September 18 does not at all stretch credulity. The question before the Court is whether the thirty-day deadline for filing a Notice of Removal tolled thirty days from September 16 or thirty days from September 18. If the former, then Plaintiffs prevail; if the latter, then Defendant prevails. Defendant prevails.
The boundaries of the removal jurisdiction of the federal courts are determined by federal laws, not state laws and procedures. See, e.g., Universal Motors Group v. Wilkerson, 674 F. Supp. 1108 (S.D.N.Y. 1987) (quoting Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 85 L.Ed. 1214, 61 S.Ct. 868 (1941)). The critical moment under 28 U.S.C. § 1446(b) is when a defendant receives the initial pleadings. Service of process may, as the language of the statute, quoted above, points out, be synchronous with receipt. As is demonstrated by the facts of this case, it also may not.
Here, because service was made on a statutory agent rather than the Defendant, it appears that service of process was completed two days before Defendant received the documents served. In this Circuit "[t]he heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than the statutory agent." Cygielman v. CunardLine, 890 F. Supp. 305, 307 (S.D.N.Y., 1995) (citations omitted). "That the New York Business Corporation Law recognizes service of process as being complete in civil actions brought against a corporation authorized to do business in the state once the Secretary of State has been served is not relevant to [the] question of whether defendant's notice of removal is timely. A strict reading of [ 28 U.S.C. § 1446(b)] supports the position that the thirty-day period does not begin to run until the defendant actually receives a copy of the pleadings." Medina v. Wal-Mart Stores, 945 F. Supp. 519, 520 (W.D.N.Y., 1996). In this case, that date is September 18, 2003.
Defendant filed its Notice of Removal on October 17, 2003, twenty-nine days after it received the initial pleadings in the case. Under 28 U.S.C. § 1446(b) and the prevailing law of this Circuit, the Notice is timely. Plaintiffs' Motion for Remand is, accordingly, denied.
Plaintiffs do not contest removal on any other ground; neither do they assert that this case falls outside the subject matter jurisdiction of this Court. From Defendant's
Notice of Removal, it appears that there is diversity of citizenship between the parties and that the amount in controversy exceeds $75,000.00. Assuming these facts to be true, this Court will take jurisdiction over the claim under Article III Section 2 of the Constitution of the United States as refined by 28 U.S.C. § 1332.