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ROSENTHAL v. LIFE FITNESS CO.

September 22, 1997

LIMOR ROSENTHAL, Plaintiff, against LIFE FITNESS COMPANY, a/k/a "LIFE FITNESS", Defendant.


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge:

 On August 22, 1994 Limor Rosenthal ("Rosenthal") commenced an action in the Supreme Court, Queens County against Jack LaLanne Fitness Center, Inc. ("LaLanne") alleging injuries sustained on March 9, 1994 while using a treadmill at the LaLanne facility. On March 5, 1997 Rosenthal commenced the present action in the Supreme Court, Queens County -- this time naming Life Fitness Company, the manufacturer of the treadmill, as the defendant -- by filing a Summons and Verified Complaint. Lawrence Decl., pp. 1-2.

 On July 30, 1997, Life Fitness filed a notice of removal in this court pursuant to 28 U.S.C. § 1446. Rosenthal has filed this motion to remand the case to the State Court pursuant to 28 U.S.C. § 1447(c) or, in the alternative, seeks to join LaLanne as a party defendant pursuant to 28 U.S.C. § 1447(e), thus destroying subject matter jurisdiction and requiring a remand to the State Court.

 The chronology of events leading to the filing of this motion is as follows. Believing that service on the defendant could be effected pursuant to Business Corporation Law § 307 ("Service of Process on Unauthorized Foreign Corporation"), Rosenthal served the Secretary of State on April 4, 1997 with the Summons and Verified Complaint and mailed a package -- the contents of which are disputed by the parties -- to Life Fitness. Lawrence Aff., Ex. D and p. 2. On April 7, 1997, the package was delivered to and signed for by Life Fitness. Id. at 2-3. According to Rosenthal, the package contained both the Summons and Verified Complaint; according to Life Fitness, the package contained only a Summons. Lawrence Decl., p. 2-3; Bolger Decl., P 5. The Summons clearly identified the names and residences of the parties and the subject matter of the action. Bolger Decl., Ex. A.

 By letter dated June 26, 1997 plaintiff's counsel alerted Life Fitness to its failure to serve an answer and offered a twenty day extension of time to answer the Verified Complaint. That letter was received and signed for on July 1, 1997. Lawrence Decl., p. 3.

 By letter dated July 16, 1997, Life Fitness acknowledged receipt of the June 26, 1997 letter and stated that the matter had been referred to counsel and that an answer would be forthcoming. Id., Ex. H. An answer was sent to Rosenthal by Federal Express on August 1, 1997, but was objected to as untimely by letter dated August 5, 1997. Id., Exs. I and J.

 Rebecca Bolger, a paralegal employed by Life Fitness "who is responsible for the initial intake and review of legal matters, including summons, new complaints and other legal pleading," Bolger Decl., P 3, avers that she understood the summons mailed in April to be connected to the ongoing dispute between Rosenthal and LaLanne and that she only learned of an action directed against Life Fitness when she received the June 26, 1997 letter on or about July 10, 1997. *fn1"

 DISCUSSION

 A. What Triggers the 30-Day Clock: Receipt or Service?

 Life Fitness argues that it was never properly served and that, for that reason, its petition is timely.

 The removal statute provides that

 
the notice of removal . . . 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. . . .

 28 U.S.C. § 1446(b) (emphasis added). Although many courts have held that the 30-day removal period commences upon perfection of service, *fn2" the better rule is that the 30-day period commences upon receipt of an initial pleading providing notice that the action is removable. See, e.g., Roe v. O'Donohue, 38 F.3d 298 (7th Cir. 1994); Tech Hills II Associates v. Phoenix Home Mutual Ins. Co., 5 F.3d 963 (6th Cir. 1993); Weimer v. City of Johnstown, N.Y., 931 F. Supp. 985 (N.D.N.Y. 1996); Mermelstein v. Maki, 830 F. Supp. 180 (S.D.N.Y. 1993); Figueroa v. Kim, 813 F. Supp. 267 (S.D.N.Y. 1993). Although many of these decisions state that the division between advocates of the service and the receipt rules is fairly equal, see, e.g., Figueroa, 813 F. Supp. at 268, the only appellate courts that have construed the statute have adopted the receipt rule and have not required proper service. As the Roe court stated,

 
accordingly, we hold that the 30 days commences when the defendant, or its authorized agent, comes into possession of a copy of the complaint whether or not the delivery ...

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