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HEREDIA v. TRANSPORT S.A.S.

March 30, 2000

HENRY HEREDIA, PLAINTIFF,
V.
TRANSPORT S.A.S., INC. AND MERCURIO PRESENZA, DEFENDANTS.



The opinion of the court was delivered by: Scheindlin, District Judge.

OPINION AND ORDER

On December 16, 1999, defendants Transport S.A.S., Inc. ("Transport") and Mercurio Presenza removed this action from New York state court to the United States District Court for the Southern District of New York. Plaintiff Henry Heredia now seeks to remand the case to state court alleging that defendants' removal was untimely. For the reasons set forth below, plaintiff's motion to remand is granted.

I. Background

The following facts are undisputed. Plaintiff is a resident of Bronx County, New York. See Defendants' Notice of Removal, Ex. C to 1/13/00 Affidavit of Alex Muller, Attorney for Plaintiff, in Support of Motion to Remand to State Court ("Muller Aff."), ¶ 5. Defendants are both citizens of Quebec, Canada. See id. ¶ 6. On January 20, 1999, plaintiff and defendant Presenza were involved in an automobile accident at the Throgs Neck Bridge, which is located near the intersection of 177th Street and Harding Avenue in Bronx County, New York. See id. ¶ 3. At the time of the accident, Presenza was driving a truck registered to defendant Transport. See 1/20/99 Police Accident Report, Ex. A to Affirmation of Richard Gallo, Attorney for Defendants, in Opposition to Remand ("Gallo Aff.").

On September 29, 1999, plaintiff filed a summons and complaint in the Supreme Court of the State of New York, Bronx County (the "Supreme Court"). See Copy of Summons and Index Number Receipt, Ex. A to Muller Aff. The state court complaint seeks damages for personal injuries arising out of the parties' automobile accident, which plaintiff alleges was caused by Presenza's negligence. See Defendants' Notice of Removal, Ex. C to Muller Aff., ¶¶ 2-3.

On October 5, 1999, pursuant to New York Vehicle and Traffic Law section 253*fn1 which sets forth procedures for service of non-resident motorists, plaintiff delivered the summons and complaint to an authorized agent in the office of New York's Secretary of State (the "Secretary of State"). See Affidavit of Service, Ex. B to Muller Aff. The following day, the Secretary of State sent notice of service and a copy of the summons and complaint by registered mail to Presenza in Quebec, Canada. See Notice as to Service of Process ("Notice"), Ex. B to Muller Aff.*fn2 On October 14, Presenza signed the return receipt, indicating that he had received the notice of service and a copy of the summons and complaint. See 10/14/99 Return Receipt, Ex. B to Muller Aff. The summons, complaint and notice of service were written only in English, while the return receipt was written in both English and French. See Copy of Summons, Ex. A to Muller Aff.; Notice & Return Receipt, Ex. B to Muller Aff.

On December 16, 1999, defendants removed the action to this Court pursuant to the general removal statute, 28 U.S.C. § 1441. See Notice of Removal, Ex. C to Muller Aff. Defendants' removal was based on the diversity jurisdiction of the federal district courts. See id. at ¶¶ 7-8; see also 28 U.S.C. § 1332. Plaintiff filed the instant motion to remand on January 14, 2000.

II. Legal Standard

Removal of actions from state court is authorized by § 1441 which provides that "any civil action brought in a State court of which the district courts have original jurisdiction, may be removed by the defendant or the defendants, to the district court. . . . where such action is pending." 28 U.S.C. § 1441(a). "In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability." Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994) (internal quotations omitted). The defendant bears the burden of establishing by "competent proof" that removal is proper in the event plaintiff moves to remand the action. See R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979); see also United Food & Commercial Workers Union v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).

III. Discussion

Procedures for removal are set forth in 28 U.S.C. § 1446. Pursuant to § 1446(b), notice of removal must be filed "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading." Thus, once a defendant receives a copy of the initial pleading — in this case, the summons and complaint — the thirty-day period for filing notice of removal is triggered, provided that service of the initial pleading is proper. See Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 347-48, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) ("[A] named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, `through service or otherwise,' after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service.").

Plaintiff contends that the case must be remanded because defendants' notice of removal was filed after expiration of the thirty-day time period set forth in § 1446(b). Defendants concede that they filed the notice of removal more than thirty days after Presenza received a copy of the summons and complaint. However, defendants argue that Presenza's receipt of the summons and complaint did not constitute receipt of the initial pleading for purposes of triggering the thirty-day removal period because plaintiffs service of those documents was improper.

Defendants' allegation of improper service is premised upon three related arguments. First, defendants contend that plaintiff's service must comply with both New York law and the Hague Convention. Second, defendants argue that plaintiff's service was inadequate under the Hague Convention because neither the summons nor the complaint was translated into French, defendants' native language. Third, defendants argue that even assuming plaintiff's service was proper under the Hague Convention, it violated due process because the ...


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