The opinion of the court was delivered by: Kahn, District Judge.
Plaintiffs Robert Hallenbeck and Kelly Hallenbeck
("Plaintiffs") originally filed this negligence action in state
court. Defendant filed a notice of removal on March 11, 1999,
asserting diversity jurisdiction. Plaintiffs now move to remand,
arguing that the notice of removal was untimely and that the
Defendant took actions in state court which constituted a waiver
of the right to removal. This Court finds that the motion was
indeed untimely, and accordingly directs that the action be
Under 28 U.S.C. § 1446(b), the notice of removal of a civil
action must be filed "within 30 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."
In this case, Plaintiffs completed service by serving the
Secretary of State with a copy of the summons and complaint on or
about February 1, 1999. The notice of removal was not filed in
this Court until March 11, 1999. Plaintiffs thus argue that the
notice was filed more 30 days after service.
"[T]he heavy weight of authority is to the effect that the time
for removal, in cases in which service is made on a statutory
agent [such as the Secretary of State] runs from receipt of the
pleading by the defendant rather than the statutory agent."
Medina v. Wal-Mart Stores, Inc., 945 F. Supp. 519, 520 (W.D.N Y
1996) (citation and internal quotations omitted). See also
Figueroa v. Kim, 813 F. Supp. 267 (S.D.N.Y. 1993). Thus, the
timeliness of the notice of removal must be determined based on
the date of actual receipt.
Defendant asserts that this date is February 9, 1999. In
support of its assertion, Defendant submits the affidavit of
Victor Baur, president of Transgas, who states that he is
"immediately notified whenever Transgas is served with litigation
papers," Baur Aff. ¶ 2, and that he was notified of the Summons
and Complaint on "February 9, 1999, the same date said Summons
and Complaint were received at the Transgas Office." Id., ¶ 3.
However, Plaintiffs have submitted into evidence the return
receipt from the mailing by the Secretary of State Office. This
receipt confirms that the Summons and Complaint were delivered to
Defendant and signed for, and that the receipt was returned on
February 8, 1999. Defendant has submitted nothing which would
suggest that this document is invalid. This Court finds,
therefore, that the Summons and Complaint were actually received
by the Defendant no later than February 8, 1999. As noted
previously, the notice of removal was filed on March 11, 1999, at
least thirty-one days after actual receipt, and was thus untimely
under 28 U.S.C. § 1446(b).
At oral argument, Defendant suggested that the party receiving
and signing for the documents did not have authority to be
served. However, the relevant issue is not whether service was
completed (as such occurred upon deliver to the Secretary of
State, see N.Y.Bus.Corp.Law § 306(b)(1)) but whether the
document was actually received. See 28 U.S.C. § 1446(b)
(requiring filing within 30 days of "receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading"); Greensmith Co., Inc. v. Com Systems, Inc.,
796 F. Supp. 812, 813 (D.N.J. 1992) (noting that "[r]eceipt is not
limited to service; rather, it is granted broader application").
If there is a relevant restriction, then, it is a restriction to
any party authorized to receive and sign for certified mail.
Since the document was signed for by a party at the address
provided to the Secretary of State for service of process, the
record clearly supports the conclusion that the party had
authority to sign for the mail, and that it was actually received
at that time. Defendant has certainly not satisfied its burden of
Accordingly, it is hereby
ORDERED that Plaintiff's motion to remand is GRANTED, and the
action is therefore remanded to state court; and it is further
ORDERED that the Clerk serve a copy of this order on ...