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JONES CHEMS., INC. v. DISTRIBUTION ARCHITECTS INT'

February 27, 1992

JONES CHEMICALS, INC., Plaintiff,
v.
DISTRIBUTION ARCHITECTS INT'L, INC. and DIGITAL EQUIPMENT CORPORATION, Defendants.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 Plaintiff Jones Chemical, Inc. moves to remand this case to New York State. Supreme Court, County of Genesee. I heard oral argument on plaintiff's motion on June 19, 1991.

 For the reasons set forth below, plaintiff's motion is granted.

 FACTS

 On January 16, 1991, plaintiff commenced this action against defendants Distribution Architects International Inc., ("Distribution Architects") and Digital Equipment Corporation ("Digital"), by serving upon each a summons with notice, pursuant to New York Civil Practice Law and Rules ("CPLR") 305(b). (Affidavit of Joseph P. Zammit, Esq., sworn to on April 25, 1991, ("Zammit aff."), Exhibit A).

 On February 15, 1991 and February 20, 1991 respectively, Distribution Architects and Digital demanded service of complaints pursuant to CPLR 3012(b). (Zammit aff., Exhibits E & F). On March 7, 1991 defendants each were served with a complaint. (Zammit aff., P8 & Exhibit G). On April 3, 1991, pursuant to 28 U.S.C. § 1441, Digital removed this action to this Court based on diversity of the parties and Distribution Architects joined in the "Petition for Removal". (Item # 1). There is no dispute that complete diversity exists between the parties. Plaintiff is a New York corporation with its principal place of business in New York. Distribution Architects is an Arizona corporation with its principal place of business in Arizona. Digital is a Massachusetts corporation with its principal place of business in Massachusetts.

 Plaintiff now moves to remand this case to state court because removal was untimely under 28 U.S.C. 1446(b). The motion is granted.

 DISCUSSION

 28 U.S.C. 1446 governs the procedure for removal. Subsection (b) states in relevant part:

 The 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 setting forth the claim for relief upon which such action or proceeding is based. . . .

 (emphasis added).

 Plaintiff argues that defendants' notice of removal was untimely because defendants filed it nearly three months after the suit was commenced pursuant to the CPLR by service of the summonses with notice. Defendants argue that removal was timely because they filed their notices of removal within 30 days of receipt of the complaint. Therefore, I must decide whether the summonses with notice served in this case constitute "initial pleadings" within the meaning of 28 U.S.C. 1446(b), thereby triggering the commencement of the 30-day removal period. I find that they do.

 The CPLR does not classify a summons with notice as a "pleading." CPLR 3011. However, this is not dispositive of the "initial pleading" question. The Supreme Court has recognized that:

 the removal statute, which is nationwide in its operation was intended to be uniform in its application, unaffected by local law definition or characterization of the subject matter to which it is to be applied. Hence the Act of Congress must be construed as setting up its own criteria, irrespective of local law, for ...


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