United States District Court, S.D. New York
February 18, 2004.
SILVESTER TAFURO, INC., Plaintiff, -against- DANIEL CLINE & ASSOCIATES, INC. and PROGRESSIVE CONSULTING ENGINEERS, INC., Defendants
The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
The above captioned case is before this Court on a Notice of Removal
filed by Defendants on December 15, 2003, pursuant to 28 U.S.C. § 1446.
Plaintiff filed its original complaint in this matter with the County
Clerk of New York County, New York on October 21, 2003. Plaintiff then
served Defendants with a summons and copies of the complaint. Affidavits
of service establish that both defendants received the summons and
complaint on October 23, 2003. The motion presently before the Court is a
Motion to Remand, filed by Plaintiff on January 14, 2004, pursuant to
28 U.S.C. § 1447.*fn1
28 U.S.C. § 1446(b) requires that "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. . . ." Therefore, defendants ostensibly had until
November 22, 2003 to file their notice. Since that day was a Saturday,
the absolute deadline for filing the notice of removal was Monday,
November 24, 2003. Defendants' notice was therefore untimely filed.
Defendants contend that federal jurisdiction over this case is proper,
despite the untimeliness of their notice of removal, because plaintiff's
action "will ultimately evolve into a copyright infringement claim."
Defendants' Affidavit in Opposition to Plaintiffs Motion to Remand, Feb.
5, 2004, at ¶ 6. In other words, defendants suggest that I find
subject matter jurisdiction over this case, independent of their own
efforts of removal, as a function of some federal question presented by
the plaintiffs pleading.
I have dealt with this issue of federal question in a recent opinion,
Virgilio v. Motorola, Inc., 2004 WL 187134 (S.D.N.Y. Jan. 30, 2004).
There I stated:
If a complaint, on its face, establishes a claim for
federal jurisdiction, then it will achieve the
preliminary goal of putting the claim before a federal
court. The court can then proceed to investigate the
merits of the claim and, if the court finds some
claims wanting, take appropriate action. . . .
Alternatively, if a complaint, on its face, fails to
establish a basis for subject matter jurisdiction,
then the merits therein can never be considered by the
court. Any inquiry or action would be without
Id. at *6.
This is, of course, the firmly established "well pleaded complaint
rule" which presumes that a plaintiff is "master of the claim." See
Caterpillar v. Williams, 482 U.S. 392, 392 (1987). Under this principle,
I cannot look farther than Plaintiffs complaint to find subject matter
jurisdiction. Since Plaintiff presents a common law claim for unjust
enrichment, I cannot exercise subject matter jurisdiction over this case
based on an as-of-yet nonexistent copyright infringement claim.
Defendants' other arguments for removal are similarly without merit.
Defendants allege that plaintiff has not suffered any prejudice by the
removal of its case to federal court. However, §
1446(b) is a strict mandate that is effectual regardless of the presence
or absence of prejudice suffered. Establishing prejudice is not within
the plaintiff's burden to bear. Neither is it dispositive that
removability of this action "was not apparent" until November 6, 2003,
the date in which defendants retained counsel. Defendants' Notice of
Removal, Dec. 15, 2003, at ¶ 4. All that is required is that a defendant
can "intelligently ascertain removability from the face of such
pleading, so that in its petition for removal, the defendant can make a
short and plain statement of the grounds for removal as required by
28 U.S.C. § 1446(a)." Whitaker v. American Telecasting, Inc., 261 F.3d 196,
206 (2d Cir. 2001) (citations omitted). In this case, I find that
Defendants could have intelligently ascertained removability from the
face of Plaintiff's pleading.
Finally, Defendants contend, correctly, that Plaintiff agreed to extend
Defendants' time to answer its complaint to December 1, 2003. Again,
however, this has no bearing on this case. The extension of time to
answer a state court action does not extend time for removal under a
federal statute. Reliance Ins. Co. v. Van Liew Capital, Inc., 2000 WL
224104, at *1 (S.D.N.Y. 2000); Bertrand v. Vingan, 899 F. Supp. 1198, 1199
Because the Notice of Removal was untimely filed, this case will be
remanded to the Supreme Court of the State of New York, New York County.
The Clerk of this Court is directed to return the file to the Clerk of
the state court identified above.
It is SO ORDERED.