United States District Court, Southern District of New York
June 26, 2001
NORMA VARELA, PLAINTIFF,
FLINTLOCK CONSTRUCTION, INC., ANDREW WEISS AND GREGORY STECK, DEFENDANTS.
The opinion of the court was delivered by: Denise Cote, District Judge:
This case requires the Court to decide whether a removal petition is
timely when filed less than thirty days after an amended complaint is
filed in which the removing party is named for the first time, but over
seven years after the inception of the action. In this action, plaintiff
Norma Varela ("Varela") asserts that defendants Flintlock Construction,
Inc. ("Flintlock"), Andrew Weiss ("Weiss") and Gregory Steck ("Steck")
sexually harassed her, unlawfully discharged her, and discriminated
against her on the basis of gender and race, in violation of federal and
Plaintiff's original complaint was filed in New York Supreme Court,
Bronx County, and named Flintlock and Steck as defendants. Flintlock was
served on June 14, 1994, and Weiss is alleged to have accepted service
for Steck, his co-worker, on June 29, 1994.
Plaintiff filed an amended complaint on March 7, 2001, in which she
added additional causes of action under state law, and named Weiss as a
defendant. Weiss filed a notice of removal to this Court on March 30,
2001. Weiss' notice of removal indicates that Flintlock consents to the
removal petition, but that, "[u]pon information and belief, defendant
GREGORY STECK has not been served in the action." Plaintiff seeks to
remand this action to New York State Supreme Court, Bronx County, on the
ground that Weiss' removal petition is untimely.
Under Section 1441(a), "any civil action brought in a State court of
which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants."
28 U.S.C. § 1441(a). Generally speaking, removal statutes are to be
"strictly construed against removal and all doubts should be resolved in
favor of remand." Leslie v. Banctec Serv. Corp., 928 F. Supp. 341, 347
(S.D.N.Y. 1996) (citations omitted).
Consequently, "the burden of proving
federal removal jurisdiction is on the party seeking to preserve
removal, not the party moving for remand." Pan Atlantic Group, Inc. v.
Republic Ins. Co., 878 F. Supp. 630, 638 (S.D.N.Y. 1995) (DLC).
Moreover, "[s]ubsection 1447(c) authorizes a remand on the basis of any
defect in removal procedure." LaFarge Coppee v. Venezolana De Cementos,
S.A.C.A., C.A., 31 F.3d 70, 72 (2d Cir. 1994) (citation omitted)
A. Timeliness of Removal
Section 1446(b) of Title 28, United States Code, provides, in relevant
part, that [t]he notice of removal of a civil action or proceeding 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 supplied). The thirty-day window for
removal contained in Section 1446(b), while not jurisdictional, is
"rigorously enforce[d]" by courts absent a finding of waiver or
estoppel. Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043
, 1046 (2d
Cir. 1991). Plaintiff's motion to remand requires this Court to consider
an issue unaddressed by the Second Circuit or the Supreme Court, and a
subject of debate among circuit and district courts: whether the
thirty-day period in which a defendant can remove a state action to
federal court runs from the time that the first defendant was served, or
from the time that the defendant seeking to remove the action was
The majority of courts, including the Fifth Circuit and district courts
in this District, have followed the "first-served defendant" rule. See,
e.g., Getty Oil, Div. of Texaco v. Ins. Co. of North Am., 841 F.2d 1254,
1263 (5th Cir. 1988); Brown v. Demco, Inc., 792 F.2d 478, 481-82 (5th
Cir. 1986); Jeffcoat v. American General Life & Acc. Ins. Co., No. CIV.
A. 01-D-325-N, 2001 WL 611196, at *2 (M.D. Al. May 16, 2001); Biggs
Corp. v. Wilen, 97 F. Supp.2d 1040, 1045 (D.Nev. 2000); Quinones v.
Minority Bus Lines Corp., No. 98-CIV. 7167 (WHP), 1999 WL 225540, at *2
(S.D.N.Y. Apr. 19, 1999); Mermelstein v. Maki, 830 F. Supp. 180, 183
(S.D.N.Y. 1993). These courts reason that an earlier- served defendant
who does not seek removal within thirty days of being served has waived
his or her right to do so and is, therefore, precluded from consenting to
a later-served defendant's notice of removal, and have additionally
asserted that the first-served defendant rule is consistent with courts'
interests in preventing defendants from forum shopping and limiting
federal courts' removal jurisdiction. See, e.g., Demco, 792 F.2d at
A growing minority of courts, including the Fourth and Sixth Circuits
and several district courts, have adopted the last- served defendant
rule. See, e.g., Brierly v. Alusuisse Flexible Packaging, Inc.,
184 F.3d 527, 532-33 (6th Cir. 1999); McKinney v. Board of Trustees of
Maryland Comm. College, 955 F.2d 924, 928 (4th Cir. 1992) (allowing all
defendants thirty days in which to petition for removal unless a
defendant was served more than thirty days after the first-served
defendant and the first-served defendant did not petition for removal);
Orlick v. J.D. Carton & Son, Inc., No. Civ. A. 00-3486 (JAG), 2001 WL
473065, at *3 (D.N.J. May 2, 2001); Griffith v. American Home Products,
Corp., 85 F. Supp.2d 995, 1000-01 (E.D.Wash. 2000); Collings v. E-Z Serve
Convenience Stores, Inc., 936 F. Supp. 892, 895 (N.D. Fl. 1996). These
courts have rejected the first-served defendant rule on the grounds that
it prejudices later-served defendants, allows plaintiffs to manipulate
and defeat removal by serving defendants at different times, compromises
defense counsel's ability to comply with Rule 11 of the Federal Rules of
Civil Procedure by forcing a decision to seek removal before there is an
opportunity to evaluate the merits of a removal petition, and belies the
plain meaning of the statutory text by requiring the court "to insert
`first' before `defendant' into the language of the statute." Brierly,
184 F.3d at 533.
Although the Supreme Court has not weighed the merits of the first
versus the last-served defendant rules, it recently held that Section
1446(b)'s time for removal does not begin to run until the defendant has
been officially served with a summons and received the complaint. Murphy
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999).
Construing the phrase "after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading," it determined
that Section 1446(b) was not intended to replace the traditional
requirement of service of process. The Court reasoned that "one becomes a
party officially, and is required to take action in that capacity, only
upon service of a summons or other authority-asserting measure stating the
time within which the party served must appear and defend." Id. at 350.
As the Court concluded,
it would take a clearer statement than Congress has
made . . . to set removal apart from all other
responsive acts, to render removal the sole instance
in which one's procedural rights slip away before
service of a summons, i.e., before one is subject to
any court's authority.
Id. at 356.
The last-served defendant rule is consistent with the Supreme Court's
opinion in Murphy Brothers, in that it preserves every defendant's
opportunity to seek removal and provides every defendant with a uniform
time in which to do so, whereas under the first-served defendant rule,
the procedural rights of later- served defendants "slip away . . . before
one is subject to any court's authority." Id. See also Orlick, 2001 WL
473065, at *3; Griffith, 85 F. Supp.2d at 1000; Barbara A. Wiseman,
Comment: Applying Murphy Bros. v. Michetti Pipe Stringing, Inc. to
Removal in Multiple-Defendant Lawsuits, Loy. L.A. L. Rev. 323, 349 (Nov.
2000). Accordingly, Weiss is entitled to thirty days to seek removal from
the date he was properly served with plaintiff's summons and had received
the amended complaint. Weiss sought removal within thirty days and,
therefore, his removal petition is timely.
B. Defendants' Consent to Removal Motion
Although Section 1441(a) only refers to removal by "the defendant or
defendants," the statute has been consistently interpreted to require
that "all named [defendants] over whom the state court acquired
jurisdiction must join in the removal petition for removal to be proper."
Still v. DeBuono, 927 F. Supp. 125, 129 (S.D.N.Y. 1996). The only
exceptions to this rule are if:
(1) the non-joining defendants have not been served
with service of process at the time the removal
petition is filed; (2) the non-joining defendants are
merely nominal or formal parties; and (3) the removed
claim is a separate and independent claim as defined by
28 U.S.C. § 1441(c).
Ell v. S.E.T. Landscape Design, Inc., 34 F. Supp.2d 188, 194 (S.D.N.Y.
1999). As noted, Flintlock has consented to Weiss' notice of removal.
These defendants assert that, because Steck was never properly
court acquired jurisdiction over Steck and, therefore, Steck need not
have consented to Weiss' notice of removal.
Although Weiss, as the removing party, bears the burden of establishing
that removal is proper, Pan Atlantic Group, Inc., 878 F. Supp. at 638,
the plaintiff generally bears the burden of establishing that a court has
jurisdiction over a defendant. Metropolitan Life Ins. Co. v.
Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). "`[P]rior to
discovery, a plaintiff challenged by a jurisdiction testing motion may
defeat the motion by pleading in good faith . . . legally sufficient
allegations of jurisdiction,' i.e., by making a `prima facie showing' of
jurisdiction." Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184
(2d Cir. 1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A.,
902 F.2d 194, 197 (2d Cir. 1990)) (emphasis in original).
New York's Civil Practice Law and Rules ("CPLR") provides that personal
service can be made
by delivering the summons within the state to a person
of suitable age and discretion at the actual place of
business, dwelling place or usual place of abode of the
person to be served and by either mailing the summons
to the person to be served at his or her last known
residence or by mailing the summons by first class mail
to the person to be served at his or her actual place
CPLR § 308(2) (emphasis supplied). "Actual place of business" is
statutorily defined as "any location that the defendant, through regular
solicitation or advertisement, has held out as its place of business."
CPLR § 308(6). For a location to be a person's "actual place of
business" for service pursuant to CPLR § 308(2), "that person must be
shown to regularly transact business at that location." Katz v. Emmett,
641 N.Y.S.2d 131, 133 (2d Dept. 1996).
An affidavit of substituted service, dated June 29, 1994, reflects that
Steck was served by leaving a copy of the summons and complaint with
Weiss at 321 Railroad Avenue, Greenwich, Connecticut. This address is not
identified as Steck's "actual place of business." Instead, it is
identified in the affidavit as Steck's "last known place of business."
Defendants assert that Steck was never properly served at his "actual
place of business" because the address where Steck was served is different
from the address "alleged by plaintiff to be Flintlock's place of
business and, more importantly, different from the New York address
alleged to be the location from which Steck worked for Flintlock."
Defendants have not asserted, however, that Steck was not served at his
actual place of business, or what Steck's actual place of business was at
the time of service. Plaintiff has not addressed whether Steck was
properly served. Presumably, as this action has been pending for over
seven years, whether Steck has properly been served under New York law
has been resolved in state court.
For the aforementioned reasons, this Court adopts the last- served
defendant rule and concludes that Weiss' removal petition was timely. A
scheduling order for further submissions on the issue of service
accompanies this Opinion.
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