Opinion
98 Civ. 6135 (TPG)
February 7, 2000
OPINION
This case was removed from state court by defendant Daffy's Inc. Plaintiff now moves to remand. The motion is denied.
The action was commenced in Supreme Court, Bronx County. The complaint alleges causes of action under 42 U.S.C. § 1981 and 1988 and under state law.
Service of the summons and complaint as to both defendants was made on the Secretary of State on July 10, 1998. Delivery to an agent of Daffy's was made on July 20.
Daffy's filed its notice of removal on August 20, 1998. The ground for removal was the existence of the federal statutory causes of action.
Plaintiff filed the motion to remand on June 1, 1999. Plaintiff asserts two grounds in support of the motion. The first is that the removal was invalid because it occurred one day following the 30-day period allowed for removal by the statute, 28 U.S.C. § 1446(b). The second is that the case cannot be removed because, as to the causes of action under federal law, the state court has concurrent jurisdiction.
28 U.S.C. § 1447(c) provides that a motion to remand on the basis of a defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice for removal.
As described above, the first ground for the remand motion is that the notice of removal was filed one day late. It is true that the notice of removal was defective in being a day late. However, this defect does not relate to subject matter jurisdiction, and therefore the 30-day time period for making the remand motion applies, and had long since expired by the time of the motion. Plaintiff seeks to excuse this delay, but this argument is without merit.
The court will assume that the 30-day deadline does not apply to the second ground of the remand motion, and that this ground relates to lack of subject matter jurisdiction. Plaintiff's argument is that the state court has concurrent jurisdiction with the federal court as to the federal statutory causes of action and therefore the case cannot be removed.
It is true that such concurrent jurisdiction does exist. It is further true that there is case authority to the effect that this prevents removal. Salveson v. W. States Bankcard Ass'n, 525 F. Supp. 566, 573 (N.D. Cal. 1981), aff'd in part and rev'd in part on other grounds, 731 F.2d 1243 (9th Cir. 1984); Young v. Bd. of Educ. of Fremont County Sch. Dist., 416 F. Supp. 1139, 1140 (D. Colo. 1976). However, there are decisions to the contrary, holding that concurrent jurisdiction does not preclude removal. Johnson v. First Unum Life Ins. Co., 914 F. Supp. 51, 52 (S.D.N.Y. 1996); Routh v. City of Parkville, 580 F. Supp. 876, 877 (W.D. Mo. 1984).
This court believes that the latter cases take the better view. Under the statute, removal can occur where the federal district court would "have original jurisdiction." 28 U.S.C. § 1441(a). When a federal statutory cause of action is asserted, a federal district court has original jurisdiction. That is the situation in the present case. Consequently the removal statute is satisfied and the court has jurisdiction to accept the removal.
The motion to remand is denied.
SO ORDERED.