". . . a willingness to 'join in any motion [sic]' to remove the case." Id., 444 F. Supp. at 1313. The court held that plaintiff was estopped from including in his calculation of the 30 day removal period the days during which defendant's counsel believed plaintiff's counsel would honor the agreement to discontinue the action. With those days excluded, removal was timely. Id., 444 F. Supp. at 1314.
find that the instant case is factually dissimilar from Staples. There, plaintiff's counsel agreed to discontinue the action directly in response to defense counsel's concern that the removal period would soon expire. In contrast, plaintiff has alleged here, and defendants have not disputed, that Distribution Architects' counsel specifically requested, on the last day of the removal period, whether plaintiff's counsel would consent to removal. (Singer aff., P3; Koplik aff., P7). Plaintiff's counsel stated that she would not. (Singer aff., P3). Therefore, unlike Staples, the parties did not enter into any agreement before the 30-day removal period expired, let alone one prompted by defense counsel's concern that expiration of the removal period was at hand. See also Nicola Products Corp. v. Showart Kitchens, Inc., 682 F. Supp. 171, 173 (E.D.N.Y. 1988) (removal untimely in part because plaintiff did not explicitly agree that it would not object to removal outside the thirty day limitation).
Furthermore, the court in Staples did not find, as Distribution Architects would have me find, that plaintiff was estopped from asserting that removal was untimely; rather, Staples held that removal was timely because plaintiff was estopped from counting the days during which defense counsel was led to believe that his client was to be dismissed from the case, essentially tolling the removal period during those days. This makes a difference because the agreement to extend the time to answer or otherwise move was entered into on or about March 29, 1991 (Koplik aff., Exhibit B), well without the 30-day removal period. Thus, plaintiff cannot be estopped from counting toward the removal period the days during which its agreement with defendants was in effect, because the removal period had already expired when the parties entered into the agreement.
Accordingly, plaintiff's motion to remand this action to state court is granted.
For the reasons more fully articulated above, the summonses with notice served by upon defendants in this case constituted "initial pleadings" within the meaning of 28 U.S.C. § 1446(b). Accordingly, plaintiff's motion to remand this action to state court for defendants' failure to remove the action within thirty days of receipt of the initial pleading is granted.
IT HEREBY IS ORDERED, that plaintiff's motion to remand this action to New York State Supreme Court, County of Genesee, is granted.
Dated: February 27, 1992
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge