The opinion of the court was delivered by: Freeh, District Judge.
On April 11, 1991, defendant Celin Jewelry, Inc. ("Celia") filed a
notice removing this case from the Supreme Court of Bronx County, New
York to this Court. Plaintiffs Brian and Irma Flood and their minor
children (the "Floods") have moved to remand the action back to state
court on the grounds that the notice of removal was untimely. For the
reasons set forth below, plaintiffs' motion is granted and the case
On February 7, 1991, the Floods initiated this action in state court by
serving a Summons with Notice upon the New York Secretary of State.*fn1
N.Y.Civ.Prac.R. 305(b). The Notice specifically stated that the action
included claims for violations of civil
rights under 42 U.S.C. § 1983. (Glovin Aff. Ex. 1).
Upon receipt of the Summons with Notice, the Secretary of State sent a
copy of the documents to defendant Celin's listed address. Counsel for
Celin filed a notice of appearance on February 23, 1991, and demanded a
complaint from the Floods. (Glovin Aff. Ex. 2). A complaint was served on
Celia on March 12, 1991, but was not filed. (Glovin Aff. Ex. 3). On April
11, 1991, Celin then filed a notice of removal to this Court. (Glovin
Aff. Ex. 4). The Floods now seek to remand the case back to state court,
claiming that Celin did not file its notice of removal within the time
limit imposed by 28 U.S.C. § 1446 (b).
Section 1446(b) provides that a notice of removal in a civil action
"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
. . ." The Floods contend that the "initial pleading" in this case was
the Summons with Notice served on the Secretary of State on February 7,
1991. According to the Floods, Celin missed the thirty-day statutory
deadline when it waited until April 9, 1991 to file its notice of
removal. (Glovin Aff. ¶ 6).
In response, Celin argues that because the Summons with Notice failed
adequately to apprise Celia of the basis for federal jurisdiction, it
should not be considered the "initial pleading" under § 1446(b).
Rather, Celin claims that the thirty-day removal period should run from
the date the complaint was served — March 12, 1991. In making this
argument, Celin focuses on the Notice's failure to include a statement
regarding the amount in controversy as to each defendant. (Opposition at
5-6). However, as the Notice clearly indicates, federal court
jurisdiction over this case would arise because a question of federal law
is raised, not because the parties are citizens of different states.
Accordingly, the amount in controversy requirement of 28 U.S.C. § 1332
does not apply here, and the Notice is not deficient for not having
In any event, courts in this district have previously held that a
summons with notice served in accordance with N YCiv.Prac.R. 305(b)
qualifies as an "initial pleading" under § 1446(b). See Universal
Motors Group v. Wilkerson, 674 F. Supp. 1108, 1113 (S.D.N.Y. 1987) (New
York summons with notice presents "more than sufficient" information on
its face to allow defendants "intelligently to ascertain removability").
Because Celin did not file its notice of removal until well after the
thirty-day period had expired, its notice was untimely and ineffective,
and the case must be remanded to the Supreme Court for Bronx County, New