Summary
denying remand and noting that the court was not aware of any action taken by the state court during the delay and plaintiff did not claim that she suffered any prejudice due to the sixty-seven day delay
Summary of this case from Moody v. Pennymac Loan Servs., LLCOpinion
10 Civ. 5398 (NRB)
05-04-2011
ISABEL YNOA, Plaintiff, v. SANFORD A. KUTNER, Defendant.
Copies of the foregoing Memorandum and Order have been mailed on this date to the following: Attorney for Plaintiff: Andrew Lavoott Bluestone, Esq. 233 Broadway, Suite 2702 New York, NY 10279 Pro Se Defendant: Sanford A. Kutner, Esq. 6 Tara Place Metarie, LA 70002
MEMORANDUM AND ORDER
Presently before the Court is plaintiff Isabel Ynoa's ("plaintiff" or "Ynoa") motion to remand this legal malpractice case to the Supreme Court, New York County. For the reasons set forth below, plaintiff's motion to remand is denied.
BACKGROUND
The factual background relevant to the present motion is complicated by a number of factors. First, a number of the underlying documents at issue appear to include typographical errors. For example, the Civil Cover Sheet, dated July 15, 2010, has plaintiff listed as defendant, and vice versa (see Affirmation of Def. ("Def. Aff."), Ex. 10), and the docket states that the notice of removal was filed by the plaintiff. Second, defendant's notice of removal erroneously cites 28 U.S.C. § 1442(a)(1) as a basis for removal. See id., Ex. 8. That provision, which addresses suits brought against the United States, federal agencies, and federal officers, is clearly inapplicable in this legal malpractice case. In spite of these (and other) issues, the following chronology appears to be undisputed:
• On May 20, 2010, plaintiff served a Summons with Notice upon defendant Sanford A. Kutner, Esq. ("defendant" or "Kutner"), informing him that plaintiff sought relief in money damages for legal malpractice, breach of contract, and breach of fiduciary duty in an action brought in New York state court. See id., Ex. 1.
• On June 8, 2010, this Court's Pro Se Office received a notice of removal submitted by defendant. Id., Ex. 8. In his notice of removal, defendant asserted that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.
• On July 15, 2010, defendant's notice of removal was formally filed and docketed in this Court by the Clerk's office. See id.
• On July 16, 2010, this Court's Pro Se Office sent defendant a service package and copies of the filed notice of removal. See id., ¶ 31; id., Ex. 9.
• On July 19, 2010, defendant received the service package and copies of the filed notice. See id., Ex. 9.
• On July 22, 2010, defendant sent plaintiff's counsel a fax stating, in relevant part, that he had "filed a Notice of Removal, which was granted." Id., Ex. 11.
• On July 26, 2010, defendant's notice of removal was filed in New York state court. Pl.'s Notice of Mot., Ex. J.
DISCUSSION
I. The Removal Statute
The only issue presently before the Court is whether Kutner complied with the statutory requirements for removal set forth in 28 U.S.C. § 1446. Under § 1446(b), "[t]he notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by 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. . . ." Under § 1446(d), a defendant must "[p]romptly after the filing of [a] notice of removal. . . give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court . . . ." Plaintiff contends that defendant has failed to meet all three of the statutory requirements for removal set forth above. We consider each in turn below.
II. Timeliness of the Filing of the Notice of Removal
Defendant was served with a summons and notice on May 20, 2010. Def. Aff., Ex. 1. While "a summons with notice may serve as an initial pleading under section 1446(b)" (Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 205 (2d Cir. 2001)), the Second Circuit recently held that "the removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought." Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d. Cir. 2010). Plaintiff's summons and notice did not specify the amount of monetary damages sought and thus, under Moltner, did not start the removal clock.
Even if the summons and notice had included sufficient information to start the removal clock, defendant's notice of removal would have been timely because it was received by this Court's Pro Se Office on June 8, 2010—within thirty days of when defendant received the initial pleadings on May 20, 2010. See Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988) (timeliness of complaint determined by date on which received by pro se clerk); see also Calzada v. Astrue, ___F. Supp.2d ___, 09 Civ. 3926, 2010 WL 4683570, at *29 n.5 (S.D.N.Y. Nov. 17, 2010) ("[T]he timeliness of pro se filings is measured by the date of receipt by the court's Pro Se Office.").
Plaintiff's argument that defendant had to file a notice of removal no later than June 1, 2010 rests on his assertion that service of the summons and notice was accomplished on May 2, 2010. Pl.'s Reply Mem. of Law in Support of Pl.'s Mot. to Remand ("Pl.'s Reply Mem.") at 1. However, as plaintiff acknowledges elsewhere (see Mem. of Law in Support of Pl.'s Mot. to Remand ("Pl.'s Mem.") at 1), defendant was served on May 20, 2010, not May 2, 2010. Thus, plaintiff's timeliness argument fails.
III. Section 1446(d) Requirements
Under § 1446(d), a defendant must "[p]romptly after the filing of [a] notice of removal. . . give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court . . . ." While the definition of "promptly" is not included in the removal statute, several courts have held that delays of more than a month in either filing the notice of removal with the state court or providing plaintiffs with written notice do not necessarily require remand. See, e.g., Ligutom v. SunTrust Mortg., C10-05431, 2011 WL 445655, at *2 (N.D. Cal. Feb. 4, 2011) ("[g]iven the lack of a clear rule for [defendant] to follow," a roughly one month delay in filing notice with state court was prompt); Delgado v. Bank of America Corp., 1:09cv01638, 2009 WL 4163525 (E.D. Cal. Nov. 23, 2009) (fifty-six day delay did not warrant remand); Whitney v. Wal-Mart Stores, Inc., Civ.04-38-P-H, 2004 WL 1941345 (D.Me. Aug. 31, 2004) (allowing approximately six month delay in filing notice of removal with state court); Calderon v. Pathmark Stores, Inc., 101 F.Supp.2d 246, 248 (S.D.N.Y. 2000)("[W]here, as here, the delay [of just over a month] was relatively short and no action was taken by the state court between the time of actual removal and the time of the requisite notice, the alleged defect is harmless and, not being jurisdictional, creates no basis for remand."). But see Rubio v. Allegheny Int'l, Inc., 659 F.Supp. 62, 63 (S.D. Fla. 1987)(forty-two delay in notifying plaintiffs of removal warranted remand); Coletti v. Ovaltine Food Products, 274 F.Supp. 719 (D.P.R. 1967) (five day delay in giving notice of removal to plaintiffs warranted removal).
Here, Kutner filed a copy of the notice of removal in state court on July 26, 2010--eleven days after it was filed by this Court's Pro Se Office on July 15, 2010, and one week after Kutner received a copy of the filed notice in the mail. Def. Aff., Ex. 9. Even if we were to consider June 8, 2010 (when the Pro Se Office received the notice of removal) as the "filing date" for purposes of determining promptness, we are not aware of any action taken by the state court in the approximately month and a half until the notice was filed with the state court, and plaintiff does not claim that she suffered any prejudice because of the relatively short delay. See, e.g., Calderon, 101 F.Supp.2d at 248. Thus, under the circumstances of this case, Kutner's filing of the notice with the state court satisfied the statutory requirement.
With regard to the provision of written notice to plaintiff, plaintiff contends that Kutner "never served the adverse party" and that this failure alone warrants remand. Pl.'s Mem. at 9. While it appears that Kutner did not notify plaintiff's counsel that he had filed a notice of removal until after the notice was filed by the Pro Se Office, Kutner sent plaintiff's counsel a fax on July 22, 2010 notifying him that Kutner had filed a notice of removal to this court, and including the newly assigned docket number. See Bluestone Aff., Ex. M. The bulk of Kutner's July 22 fax is hard to follow, includes a number of errors, and appears to reflect Kutner's mistaken view that, having received a service packet from this Court's Pro Se Office, he (the defendant) somehow had to serve the summons and complaint upon the plaintiff.
Nevertheless, the following facts are clear. (1) On July 22, 2010, defendant notified plaintiff's counsel, in writing, that he had filed a notice of removal. (2) On July 27, 2010, plaintiff's counsel submitted a letter to this court stating that he had received defendant's fax earlier that day and requesting leave to file a motion to remand. (3) By August 5, 2010, at the latest, plaintiff's counsel had obtained a copy of the notice of removal, which he included as an exhibit to the motion to remand dated August 5, 2010. See Pl.'s Notice of Mot., Ex. K.
Under these circumstances, where plaintiff does not claim that she has been prejudiced in anyway, defendant's July 22, 2010 fax appears to indicate a good-faith albeit misguided attempt at service of the notice of removal upon plaintiff, plaintiff's counsel contacted this court and sought to remand the case on July 27, 2010 (the same day he received constructive notice of removal), and plaintiff's counsel received an actual copy of the notice no later than August 5, 2010, remand is not warranted. See, e.g., Busby v. Capital One, N.A., ___ F.Supp.2d___, No. 10-1025, 2011 WL 44284, at *4 (D.D.C. Jan. 6, 2011) (noting that "recent authorities hold that a good faith effort to provide written notice to the plaintiff satisfies the requirement absent any prejudice to the plaintiff"); McCall v. Greyhound Lines, Inc., 98 Cv. 7568, 1998 WL 865626, at *2 (S.D.N.Y. Dec. 11, 1998) (stating that "[i]t is clear that constructive notice may be sufficient notice for the purposes of the statute," and finding that plaintiff received notice of removal three days after the notice was filed when she received an order from the federal court directing the parties to appear for an initial conference).
IV. Plaintiff's Demand For a Jury Trial
Plaintiff has sought a determination that, in the event that her motion to remand is denied, her demand for a jury trial is timely. Pl.'s Mem. at 10. Rule 38(b) of the Federal Rules of Civil Procedure requires that a party seeking a jury trial serve the other parties with a written demand "no later than 14 days after the last pleading directed to the issue is served." When a case has been removed from state court, Rule 81 governs the jury demand process. The relevant provision with respect to plaintiff's demand for a jury trial in this case is Rule 81(c)(3)(B), which provides that "[i]f all necessary pleadings have been served at the time of removal, a party entitled to a jury trial under Rule 38 must be given one if the party serves a demand within 14 days after: (i) it files a notice of removal; or (ii) it is served with a notice of removal filed by another party." Especially in light of the confusion regarding service of the notice of removal upon plaintiff, plaintiff's jury demand, dated August 4, 2010, is timely. Further, defendant does not object to the demand. See Def.'s Mem. of Law in Opp'n to Mot. to Remand at 9.
CONCLUSION
For the foregoing reasons, plaintiff's motion to remand is denied. Dated: New York, New York
May 4, 2011
/s/_________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE Copies of the foregoing Memorandum and Order have been mailed on this date to the following: Attorney for Plaintiff:
Andrew Lavoott Bluestone, Esq.
233 Broadway, Suite 2702
New York, NY 10279 Pro Se Defendant:
Sanford A. Kutner, Esq.
6 Tara Place
Metarie, LA 70002