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SMITH v. KINKEAD

United States District Court, S.D. New York


April 5, 2004.

ERIC SMITH, Plaintiff V. DAVERLYNN D. KINKEAD and ELRAC, INC., Defendants

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

In this motor vehicle accident lawsuit, plaintiff Eric Smith ("Smith") has moved for an order, pursuant to 28 U.S.C. § 1447(c), remanding this action to the Supreme Court of the State of New York. For the reasons set forth, the motion is granted.

Prior Proceedings

  Smith commenced this action in New York state court by serving a summons with notice upon the Secretary of State on August 12, 2003. The summons identified the amount in controversy, the nature of the claim and the fact that Smith resided in Bronx County. It did not identify the residences of the two defendants, ELRAC, Inc. ("ELRAC") and Daverlynn D. Kinkead ("Kinkead").

  Upon receipt of the summons with notice, ELRAC served upon Smith a notice of appearance and demand for complaint on October 22, 2003. Smith then served his verified complaint on ELRAC on December 11, 2003. ELRAC removed the case to this Court pursuant to 28 U.S.C. § 1441 on December 29, 2003. As of this date, Kinkead has not made an appearance in this action.

  On January 20, 2004, Smith moved to remand the action to state court. After submission of briefs, oral argument was heard on the motion on March 24, 2004, at which time the motion was deemed fully submitted. Discussion

  In his opening brief, Smith argues that ELRAC removed the case outside of the 30 day removal period provided by 28 U.S.C. § 1446(b). Smith argues that the time for removal dates from service of the notice with summons, which in this case was on August 12, 2003. ELRAC contends that the time for removal runs from service of the verified complaint, which took place on December 11, 2003. Each party has cited case law in support of its respective position.

  In reply, Smith contests the date on which the 30-day removal period begins. In addition, Smith argues that remand is warranted because not all defendants have consented to the removal of this case. Because the latter argument is dispositive of this motion, the issue of when the 30-day removal period begins will not be considered.

  "Removal jurisdiction must be strictly construed, both because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns." In re NASDAQ Market Makers Antitrust Litigation, 929. F. Supp. 174, 178 (S.D.N.Y. 1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941) ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.").

  "The burden is on the removing party to prove that it has met the requirements for removal." Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 (E.D.N.Y. 1998) (quoting Avon Products, Inc. v. The A/J Partnership, 89 Civ. 3743/8032, 1990 WL 422416, at *1 (S.D.N.Y. March 1, 1990)); see also NASDAQ Market Makers, 929 F. Supp. at 178. "There is nothing in the removal statute that suggests that a district court has `discretion' to overlook or excuse prescribed procedures." Id. (quoting Spillers v. C.R. Tillman, 959 F. Supp. 364, 368 (S.D. Miss. 1997)).

  The procedure for removal is outlined in 28 U.S.C. § 1446 (a) and (b):

There are only a few requirements: (1) that the Notice be signed in accordance with [Fed.R.Civ.P.] 11, which requires the signature of at least one attorney of record in his own name; (2) that it contains a short and plain statement of the grounds for removal, together, with a copy of all process, pleadings, and orders served upon such defendants in such action; and (3) that the notice be filed within thirty (30) days of service of summons or complaint.
Payne v. Overhead Door Corp., 172 F. Supp.2d 475, 476-77 (S.D.N.Y. 2001). However, "the removal statute has consistently been interpreted to require that all defendants consent to removal within the thirty day period." Id. at 477 (citing Berrios v. Our Lady of Mercy Medical Center, 99 Civ. 21, 1999 WL 92269, at *2 (S.D.N.Y. Feb. 19, 1999)). This requirement is known as the "rule of unanimity." Id.; see also Allstate Ins. Co. v. Zhigun, 03 Civ. 10302, 2004 WL 187147, at *2 (Jan. 30, 2004); Ell v. S.E.T. Landscape Design, Inc., 34 F. Supp.2d 188, 193 (S.D.N.Y. 1999) (noting "widespread agreement" to the rule of unanimity "among the district courts, including those in the Second Circuit") (citing cases); Codapro, 997 F. Supp. at 325. The "rule of unanimity `advances the congressional purpose of giving deference to a plaintiff's choice of a state forum and resolving doubts against removal in favor of remand.'" Miller v. First Security Investments, 30 F. Supp.2d 347, 350 (E.D.N.Y. 1998) (quoting Ogletree v. Barnes, 851 F. Supp. 184, 187 (E.D. Pa. 1994)).

  Consent has been interpreted by a "majority of courts to mean that each defendant must submit written consent unambiguously agreeing to removal." Payne, 172 F. Supp.2d at 477 (citing Berrios, 1999 WL 92269, at *2 n.1; Ell, 34 F. Supp.2d at 194). Requiring written consent "serves the policy of insuring the unanimity necessary for removal . . .[and] is consistent with the notion that filing requirements are strictly construed and enforced in favor of remand." Miller, 30 F. Supp.2d at 351 (quoting Henderson v. Holmes, 920 F. Supp. 1184, 1187 n.2 (D. Kan. 1996)). Further, "written consent to remove by each defendant prevents one defendant from choosing a forum for all." Id. (citing Production Stamping Co. v. Maryland Cas. Co., 829 F. Supp. 1074, 1076 (E.D. Wis. 1993)). No written consent has been received from Kinkead; in fact, Kinkead has not filed anything in this litigation.

  There are three recognized exceptions "to the general rule that all defendants must join or consent to the petition for removal." Ell, 34 F. Supp.2d at 194. Remand is inappropriate where:

(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).
Id. (citing Courtney v. Benedetto, 627 F. Supp. 523, 526 (M.D. La. 1986); 14C Charles A. Wright, Arthur P. Miller & Edward H. Cooper, Federal Practice and Procedure § 3731). None of the exceptions apply in this case. Kinkead was served with service of process on August 12, 2003, and both Kinkead and ELRAC are alleged to have been negligent in the ownership and operation of the motor vehicle during the incident which resulted in injuries to Smith.

  Applying these standards, ELRAC has failed to satisfy its burden of demonstrating that all the served defendants consented to removal. While ELRAC's notice of removal, which asserts the diverse citizenship of both itself and Kinkead,

purports to act on behalf of all the served defendants, none of the other defendants signed the notice. Since then, [the other defendant has not] filed anything in this Court, much less the separate "pleading" manifesting [her] consent to satisfy the "rule of unanimity."
Codapro, 997 F. Supp. at 326. Absent fulfillment of the requirements of the rule of unanimity, remand of this case is appropriate.

 Conclusion

  For the reasons set forth above, Smith's motion to remand this case pursuant to § 1447(c) is granted, and this action is remanded to state court for further proceedings.

  It is so ordered.

20040405

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