The opinion of the court was delivered by: Sand, District Judge.
On October 12, 2001, Plaintiff Gregory Rowland ("Rowland") brought suit
in New York State Supreme Court, Bronx County, against Defendant
Giftcerticates.com ("Gificertificates"), a Delaware corporation. On
January 29, 2002, Defendant filed a notice of removal seeking to bring
this action to federal district court. In this motion to remand,
Plaintiff claims that the notice of removal was filed more than thirty
days after Defendant was served with the summons and complaint, thus
violating the thirty-day time frame in which a notice of removal must be
filed. See 28 U.S.C. § 1446 (b). We deny Plaintiffs motion to
On March 15, 2001, Plaintiff, wishing to pursue claims against
Defendant for alleged employment discrimination, false imprisonment,
negligence, and defamation, ascertained from the New York Secretary of
State ("Secretary of State") that Gificertificates was an active foreign
corporation authorized to do business in New York State with a service of
process address given as 470 7th Avenue, 6th Floor, New York, N Y 10018.
See Ivan Diamond Affidavit ¶ 4 ("Diamond Aff."); Complaint ¶¶ 30,
66, 78, 85, 99. On March 19, 2001, Plaintiffs counsel sent an
acknowledgment of representation letter to Defendant at this address
through certified mail return receipt requested. Id. On March 20, 2001,
the return card was returned with the signature of "M. Vancol." Id. On
March 22, 2001, Defendant's counsel responded to Plaintiffs March 19
letter and stated that they were unaware of any litigation between
Rowland and Gificertificates. Id. at ¶ 7.
On October 12, 2001, Plaintiffs counsel reconfirmed with the Secretary
of State that Defendant was a foreign corporation in good standing with
the same service of process address. Id. at ¶ 8. That same day,
Plaintiff commenced this action in New York State Supreme Court, Bronx
County. Id. Plaintiffs summons and complaint was served on the Secretary
of State pursuant to the New York Business Corporation Law § 306
("Bus. Corp. Law"), and the required fee was paid. Id. at ¶ 9. Upon
receiving no answer to the complaint by December 7, 2001, Plaintiffs
counsel personally mailed a copy of the summons and complaint to
Defendant's service of process address and to Defendant's counsel. Id. at
¶ 10. Defendant received this second summons and complaint on January
9, 2002 at its Seattle, Washington office. See Defendant's Memorandum 2.
Defendant states that it had moved from its New York headquarters on June
30, 2001, and its mail was thereafter forwarded to its Seattle office.
See Michael Ahern Affidavit ¶ 4, 5 ("Ahern Aff.").
On January 31, 2002, Plaintiff received a notice of removal dated
January 29, 2002. Id. at ¶ 11. On February 7, 2002, Plaintiffs
counsel requested from the Secretary of State any documents that were
filed by Defendant. On February 20, 2002, Plaintiffs counsel asked the
Secretary of State for any documents relating to service of process on
Defendant in this matter. With respect to the service of process of
Defendant, the Secretary of State produced a document stating that the
"envelope containing the process was returned by the Postal Service with
the following notation: Forwarding Order Expired." Diamond Aff., Ex. C,
at 7. There are no submissions from the parties that suggest Defendant
received the November 11, 2001 mailing from the Secretary of State.
Plaintiff now claims that Defendant did not file a notice of removal
within the thirty days required by Fed. R. Civ. Pro § 1446(b).
For a foreign corporation to be authorized in New York, it must apply
for such authority and designate "the secretary of state as its agent
upon whom process against it may be served and the post office address
within or without this state to which the secretary of state shall mail a
copy of any process against it served upon him." Bus. Corp. Law §
1304. Defendant in fact applied for authority in New York pursuant to
Bus. Corp. Law § 1304 on October 9, 1997, was granted such
authority, and designated the Secretary of State as the agent of the
corporation for purposes of service of process. See Diamond Aff., Ex. F.
Section 28 U.S.C. § 1446(b) states:
The 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,
or within thirty days after the service of summons
upon the defendant if such initial pleading has been
filed in court and is not required to be served on
defendant, whichever period is shorter.
Fed. R. Civ. P. § 1446(b).*fn1 The critical issue here is whether
Defendant filed a notice of removal within thirty days of "receipt" of
the initial pleading through "service." Id. Plaintiff claims that
Defendant was served on November 11, 2001 when the Secretary of State
mailed a copy of process to Defendant.*fn2 See Diamond Aff., Ex. C. By
contrast, Defendant claims that it was not served until January 9, 2002
when it received the complaint at its offices in Seattle, Washington. See
Diamond Aff., Ex. H. If Defendant was served on November 11, 2001 or
shortly thereafter, the January 29, 2002 notice of removal would be
untimely and the case should be remanded to state court. If Defendant was
served on January 9, 2002, the notice of removal would be timely and the
motion to remand should be denied.
Defendant will prevail if (a) Defendant's failure to receive the
November 11, 2001 service of process was not the result of some
dereliction on its part, such as a failure to provide for the forwarding
of its mail by the Postal Service, (b) Defendant did not violate a
statutory duty or obligation that prevented its timely receipt of the
November 11, 2001 service of process, and (c) Defendant did not receive
the summons and complaint under a theory of constructive receipt.
A. Dereliction with Respect to the Forwarding Order
The first issue is whether the Defendant was derelict in some manner
with regard to having its mail forwarded from its New York address to its
Seattle office. If Defendant was derelict in failing to file the proper
forwarding order with the Postal Service, then Plaintiff may be able to
argue persuasively that service of process was effected on November 11,
2001 or soon thereafter even though Defendant did not receive the service
of process until January 9, 2002.
In general, this court has found that 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 by the statutory agent." Cygielman v. Cunard Line
Ltd., 890 F. Supp. 305, 307 (S.D.N.Y. 1995) (citing cases) (emphasis
added); Medina, 945 F. Supp. at 520 ("That the New York Business
Corporation Law recognizes service of process as being complete in civil
actions brought against a corporation authorized to do business in the
state once the Secretary of State has been served is not relevant to
[the] question whether defendant's notice of removal is timely.").
Moreover, 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." Cygielman, 890
F. Supp. at 307. See also Cancel v. Challenge Printing Company, 1996 WL
701022 (S.D.N.Y. 1996) (finding that the New York Secretary of State is
considered a statutory agent for service of process purposes). If service
of process is lost in the mail or is returned to the sender as a result
of the Postal Service's error, the intended recipient is not and should
not be held ...