United States District Court, Southern District of New York
June 27, 2000
MARIA CALDERON, PLAINTIFF,
PATHMARK STORES, INC., DEFENDANT.
The opinion of the court was delivered by: Rakoff, District Judge.
On February 3, 2000, plaintiff commenced this suit in Supreme Court,
Bronx County, N.Y., and on February 11, 2000 served a summons with notice
on defendant (a foreign corporation authorized to do business in New
York) by serving the Secretary of State of the State of New York.
Defendant received the summons on February 16, 2000, and removed the
action to this Court on March 16, 2000. Plaintiff then moved to remand,
but, for the reasons given below, that motion is denied.
Pursuant to 28 U.S.C. § 1446(b), a notice of removal must be filed
in the district court within thirty days of receipt by defendant,
"through service or otherwise," of the initial pleading. Plaintiff
contends that defendant's notice of removal was not timely because it was
filed more than thirty days after service of the summons on the Secretary
of State. However, where service is made on a statutory agent such as the
Secretary of State, a defendant's time to remove runs, not from the date
of service on the statutory agent, but from the date on which the
defendant receives the notice that such service has been made. As
summarized in Cygielman v. Cunard Line Ltd, 890 F. Supp. 305 (S.D.N.Y.
1995) at 307: "The heavy weight of authority is to the effect that the
time for removal, in cases in which service is made on a statutory
agent, runs from receipt of the pleading by the defendant rather than the
statutory agent. . . . This makes abundant sense, as the defendant's
right to a federal forum ought not to depend upon the rapidity and
accuracy with which statutory agents inform their principals of the
commencement of litigation against them."
Independently, plaintiff also seeks remand because defendant failed to
notify the state court of the removal until April 21, 2000, in alleged
violation of 28 U.S.C. § 1446(d), which requires that a party
removing a case to federal court "promptly" file a copy of the notice of
removal with the state court. See, e.g., Beleos v. Life and Casualty
Insurance Co., 161 F. Supp. 627 (E.D.S.C. 1956) (remanding for
defendant's failure to file a copy of the notice of removal with the
state court where the state court, lacking notice of the removal, had in
the interim entered default judgment against defendant). However,
where, as here, the delay was relatively short and no action was taken by
the state court between the time of actual removal and the time of the
requisite notice, the alleged defect is harmless and, not being
jurisdictional, creates no basis for remand.
For the foregoing reasons, plaintiff's motion to remand is denied.
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