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