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MERMELSTEIN v. MAKI

May 20, 1993

ESTELLE MERMELSTEIN, Plaintiff,
v.
JAMES THEODORE MAKI and N.W. DAIRY FORWARDING CO., Defendants.


SOTOMAYOR


The opinion of the court was delivered by: SONIA SOTOMAYOR

SONIA SOTOMAYOR, U.S.D.J.

 Plaintiff moves pursuant to 28 U.S.C. § 1447(c) to remand this action to the Supreme Court of the State of New York, County of Bronx, due to a defect in the removal procedure. For the reasons stated below, the parties are ordered to proffer additional evidence addressing the open issues of who received the initial pleadings and when they were received so that the Court may decide the motion at bar.

 I. Background

 Plaintiff commenced the above-captioned action in the Supreme Court of the State of New York, County of Bronx, by service of a Summons and Complaint pursuant to the New York Vehicle and Traffic Law. On January 8, 1993, plaintiff's counsel executed affidavits of compliance in order to perfect service under N.Y. V.T.L. § 253. Attached to each affidavit is a photocopy of what appears to be a certified mail return receipt; however, no official Post Office stamp can be identified from either photocopy.

 Counsel appended to the Affidavit of Compliance executed for service upon defendant James Theodore Maki an exhibit that he characterized as "a copy of the signed return receipt signed by defendant." The return receipt indicates that service was by certified mail and includes a handwritten delivery date of "1-14-93." The name "Donna Maki" appears in cursive writing above the line designated for the signature of addressee.

 Similarly, counsel appended to the Affidavit of Compliance respecting service upon the other defendant, N.W. Dairy Forwarding Co., an exhibit that he characterized as "a copy of the signed return receipt signed by defendant." Once again, the return receipt indicates that service was by certified mail and includes a handwritten delivery date of "1-14-93." The name "Shantil Doro" appears in cursive writing in the space designated for the signature of addressee.

 Defendants removed this action to federal court on February 16, 1993. Plaintiff subsequently filed this motion to remand, claiming that the dates on the return receipts prove that defendants received notice of the pendency of the action on January 14, 1993, more than thirty days before the removal petition was filed, rendering the removal defective.

 II. Discussion

 The notice of removal of a civil action must 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 . . . ." 28 U.S.C. § 1446(b). Although there is some disagreement among district courts as to whether the period for removal is triggered by proper service or mere receipt of the pleadings by the defendant, other judges in this district have adopted the "receipt" rule. See, e.g., Figueroa v. Kim, 813 F. Supp. 267 (S.D.N.Y. 1993) (Cedarbaum, J.); Gates Construction Corp. v. Koschak, 792 F. Supp. 334, 336 (S.D.N.Y. 1992) (Mukasey, J.).

 This reading follows from the plain language of the statute, which requires only that the defendant receive the initial pleadings, and that receipt may be "through service or otherwise." 28 U.S.C. § 1446(b) (emphasis added). It also advances Congress's purpose of "establishing a uniform federal system for removal of cases to federal court . . . [and] is consistent with the well-established principle that the removal statute is to be construed narrowly and against removal." Id., citing Schwartz Brothers, Inc. v. Striped Horse Records, 745 F. Supp. 338, 340 (D.Md. 1990). These considerations have led an increasing majority of courts to adopt the "receipt rule." See Shoemaker v. GAF Corp., 814 F. Supp. 495 (W.D. Va. 1993) (citing cases). In light of the prevailing interpretation in this district that receipt, rather than actual service, governs removal, defendants' reliance on Estate of Baratt v. Phoenix Mutual Life Ins. Co., 787 F. Supp. 333 (W.D.N.Y. 1992) (adopting proper service rule) is misplaced. *fn1"

 If Ms. Doro did indeed sign the return receipt on January 14, then the Court could conclude on the basis of the record now before it that the corporate defendant "received" the initial pleadings on that date. Shawn W. Nelson, the President of defendant Northwest Dairy Forwarding Co., submitted an affidavit testifying that Ms. Doro is a receptionist "whose responsibilities included greeting visitors, answering the telephone and receiving mail and packages." Nelson Affidavit P 3. Courts have held that "if delivery of the initial pleading is made in a manner which, objectively viewed, is calculated to give fair notice to the defendant, the receipt is sufficient to trigger the statutory removal period." Pillin's Place, Inc. v. Bank One, Akron, N.A., 771 F. Supp. 205, 208 (N.D. Ohio 1991). Thus, receipt occurs if the pleadings are accepted and signed for by a "responsible" employee "whose duty it was to pick up the mail," see Maglio v. F.W. Woolworth Co., 542 F. Supp. 39, 41 (E.D. Pa. 1982), or by receipt of a telecopy by a manager of a department out of which the litigation arose. See Pillin's Place, Inc. v. Bank One, Akron, N.A., 771 F. Supp. 205, 208 (N.D. Ohio 1991). Since Ms. Doro's responsibilities include receiving the mail, her acceptance of the mailed pleadings could constitute receipt by the defendant for purposes of triggering the removal period. It is of no import that she is neither an officer, managing agent, cashier, or individual designated to accept service of process on behalf of the company, nor is it significant that she has no discretionary, supervisory, or management powers within the corporation. She is in charge of the mail.

 This is a desirable result, for if receipt by a corporate defendant required that a corporate officer designated to accept service receive the pleadings, it would be difficult to determine from objective evidence when the thirty-day period was triggered, whereas reliance on the dated signature on the certified mail return sets a definite point from which to ...


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