N.E. 992 (1893); Colbert v. International Security Bureau Inc., 79 A.D.2d 448, 454 - 55, 437 N.Y.S.2d 360 (2d Dept. 1981).
Susan Simmons is a part-time receptionist employed by the defendant. She is not authorized to accept service for her employer and it is evident from her affidavit that she did not tell the process server that she was so authorized. (Simmons Aff., P8). The process server's affidavit provided by the plaintiff does not convince me otherwise. It is not an original affidavit and, moreover, it was not made until January 28, 1992 -- more than a month and a half after Susan Simmons was "served." A process server who serves 400 to 500 sets of papers a year on corporations and individuals in the Rochester area may not recall the exact circumstances surrounding service of a summons and notice a full month and a half after it was served. (See Plaintiff's Reply Memorandum in Support of Remand, at 7). Accordingly, this court concludes that the December 9, 1991 service was improper and invalid.
B. Commencement of the 30-Day Removal Period:
The only remaining question is, whether under 28 U.S.C. § 1446(b), the 30-day removal period is triggered when the defendant receives a summons and complaint (or notice) regardless of whether service was proper, or whether proper service is a prerequisite to commencement of the 30-day removal period.
The Second Circuit has not considered this issue, and courts which have addressed it seem to be evenly divided as to whether proper service is required. See Conticommodity Services, Inc. v. Perl, 663 F. Supp. 27 (N.D.Ill. 1987). The Conticommodity line of cases holds that the 30-day removal period begins to run when the defendant receives a copy of the summons and complaint, regardless of whether the defendant was properly served. Conticommodity, 663 F. Supp. at 30 - 31; Dawson v. Orkin Exterminating Co., 736 F. Supp. 1049, 1053 (D. Colo. 1990). These courts reason that the language "thirty days after the receipt by the defendant, through service or otherwise," added to section 1446(b) in a 1949 amendment,
sought to eliminate the unfairness [of the interaction of the prior rule with diverse state procedures] by providing a time limit which would operate with a greater degree of uniformity throughout the federal system . . . [making] the key to the time for removal [the] actual or constructive receipt by the defendant of the initial pleading setting forth the removable claim.
Dawson, 736 F. Supp. at 1053 (quoting Conticommodity, 663 F. Supp. at 30). Further, they reason that because the removal statute must be construed narrowly, and the statute is "straightforward and unambiguous," the proper conclusion is that the removal period is triggered by "receipt of an initial pleading by the defendant, irrespective of the technicalities of state service of process law." Dawson, 736 F. Supp. at 1053 (quoting Conticommodity, 663 F. Supp. at 30 - 31).
I am not persuaded by this reasoning, and instead that proper service is a prerequisite to commencement of the removal period. E.g., Love v. State Farm Mutual Automobile Insurance Co., 542 F. Supp. 65, 68 (N.D. Ga. 1982). Moreover, I am not convinced that following the rationale of Dawson and Conticommodity would result in "a greater degree of uniformity throughout the federal system."
Those district courts requiring proper service have held that Congress added the "or otherwise" language to § 1446(b) in order to expand the removal period in states which allowed a plaintiff to commence a lawsuit without filing a complaint. E.g., Hunter v. American Express Travel Related Services, 643 F. Supp. 168 (S.D. Miss. 1986); see also, 28 U.S.C. § 1446, Revision Notes (1949 Act). The "through service or otherwise" language "was not intended to diminish the right to removal" by permitting a plaintiff to avoid state service requirements. See Love, 542 F. Supp. at 68. In fact, the Revision Notes suggest that Congress was trying to protect the right of removal while simultaneously preserving adherence to State service requirements. See 28 U.S.C. § 1446, Revision Notes (1949 Act). To conclude that the "or otherwise" language permits a plaintiff to ignore the technical service requirements is simply inconsistent with legislative intent behind the 1949 amendment. See id.
Finally, this court rejects the notion that reliance on receipt instead of proper service would result in a greater degree of uniformity in the federal system. First, I note that it would do so at the expense of state service rules which are in place to assure that the defendant receives notice sufficient to satisfy notions of due process and fair play. Second, it would essentially reward plaintiffs for effecting improper service. The "or otherwise" language of section 1446(b) was not intended to permit a plaintiff to substitute informal or improper service for the traditional requirements of personal service. Love, 542 F. Supp. at 68. Finally, and perhaps most importantly, it would not provide the clearest rule. Collateral litigation would surely result from arguments over whether the defendant "actually or constructively," received papers which were improperly served. See Dawson, 736 F. Supp. at 1053. The simplest and fairest route is to hold that the removal period is not triggered until there has been proper service.
Given my conclusion that the December 9, 1991 service of papers upon Susan Simmons, an individual not authorized to accept service on behalf of the defendant, was improper, I conclude that that event did not trigger the 30-day removal period. Instead, the time in which to remove this diversity action to federal court did not commence until January 27, 1992, the date on which the defendant received proper service. Accordingly, removal was timely and plaintiff's motion to remand is denied.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
DATED: Rochester, New York
March 16, 1992