United States District Court, S.D. New York
August 25, 2005.
THE CITY OF NEW YORK, Plaintiff,
GENERAL STAR INDEMNITY COMPANY, Defendant.
The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge
Plaintiff City of New York (the "City") moves for remand of the
present action pursuant to 28 U.S.C. § 1447 on the ground that
defendant General Star Indemnity Company ("General Star
Indemnity") filed its notice of removal more than thirty days
after receipt of the summons and verified complaint, thereby
failing to comply with 28 U.S.C. § 1446(b). The City also seeks
an award of attorneys' fees relating to the expense of litigating
the remand pursuant to 28 U.S.C. § 1447(c).
The City originally commenced this action against defendant
General Star Indemnity by filing a summons and verified complaint
in Supreme Court New York County on June 10, 2003. In the
complaint, the City alleged that General Star Indemnity was
obligated to defend and indemnify the City pursuant to a general
liability policy between the parties and was liable for the
City's accrued defense costs. The City's affidavit of service
indicates that the City served copies of the summons and verified
complaint upon General Star Indemnity on June 12, 2003, at One
Liberty Plaza, New York, New York.
On July 16, 2003, more than thirty days after the City's
alleged date of service, General Star Indemnity filed a notice of
removal with the Clerk of the United States District Court for
the Southern District of New York removing this action from the Supreme Court of New York, New York County to Federal
court. The City contends notice of removal was untimely under
28 U.S.C. § 1446(b).*fn1
General Star Indemnity maintains that the City never properly
served it with the summons and complaint and that, instead, the
City served General Star Management Company ("General Star
Management"), the underwriting manager for General Star
Indemnity. Such service, it argues, does not constitute service
on General Star Indemnity. Furthermore, General Star Indemnity
claims that it did not receive a copy of the pleadings in its
Stamford, Connecticut office until June 17, 2003. Thus, it
contends, its July 16, 2003 notice of removal was made within the
requisite thirty days.
A defendant seeking removal of a civil action from State court
must file a notice of removal within thirty days after receiving
the initial pleadings, through service or otherwise.
28 U.S.C. § 1446(b). Failure to file notice of removal within the thirty-day
period requires denial of the petition for removal. See Bertrand
v. Vingan, 899 F.Supp. 1198, 1199 (S.D.N.Y. 1995) (Parker, J.)
(noting that a defendant seeking a removal must strictly comply
with the statutory requirements and that where there is doubt the case should be remanded).
Moreover, the party seeking removal of the action bears the
burden of convincing the court that removal is proper. See R.G.
Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.
1979) (removing party must show its right to a federal forum by
General Star Indemnity must thus establish that its July 16,
2003 notice of removal was not time barred. To do so, it must
demonstrate that service by the City on June 12, 2003 at One
Liberty Plaza did not constitute service on General Star
Indemnity. Despite the burden it carries on the issue, General
Star Indemnity offers little beyond unsubstantiated conclusory
statements to bolster its position. See Cornell v. Assicurazioni
Generali S.p.A., 2000 WL 1099844, * 1 (S.D.N.Y. 2000) (Mukasey,
J.) ("Legal conclusions done up as factual allegations are not
facts and cannot substitute for facts") (citation omitted).
General Star Indemnity simply states that service at One Liberty
Plaza was effectuated upon General Star Management, not General
Star Indemnity, but fails to establish that a meaningful
distinction between the two exists for service purposes.
The City, by contrast, has submitted numerous facts tending to
establish that service at One Liberty Plaza was indeed service on
General Star Indemnity. The City notes that General Star
Indemnity holds itself out as having both offices and personnel
at One Liberty Plaza. For example, a directory of the General Re Corporation, the parent company of both General Star Management
and General Star Indemnity, lists the two companies as a single
block of companies and indicates that both have branch offices in
"Atlanta, Chicago, Dallas, Los Angeles and New York." Pl. ex A
(emphasis added). Moreover, in documents submitted to the court,
at least two of General Star Indemnity's employees, James
Richardson and Brian May, are listed as located at One Liberty
Moreover, the City actually served General Star Indemnity at
One Liberty Plaza in a prior case, without protest, and was
expressly informed that One Liberty Plaza was an appropriate
place for such service. Bugg-Levine Decl. at ¶¶ 4-6. General Star
Indemnity has neither refuted these facts nor offered additional
information to convince the court that service at One Liberty
Plaza was improper. Thus, given that General Star Indemnity is
deemed to have been served on June 12, 2003, its July 16, 2003
notice of removal is time barred under 28 U.S.C. § 1446(b).
The City also seeks an award of attorneys' fees relating to the
expense of litigating remand pursuant to
28 U.S.C. 1447(c).*fn3 General Star Indemnity's untimely removal of
this case has delayed a relatively simple state law declaratory
judgment claim and added unnecessary litigation expense. General
Star Indemnity should bear the costs attendant to this delay. See Shamoun v. Peerless
Importers, 2003 WL 21781954, *1 (E.D.N.Y.) (remanding case to
state court pursuant to § 1447 and granting plaintiff's request
for attorneys' fees and costs).
General Star Indemnity's notice of removal is time barred under
28 U.S.C. § 1446(b). The City's motion for remand, including its
request for attorneys' fees, is hereby granted. The Court of the
Clerk is hereby directed to remand the action to New York Supreme
Court, New York County. The City is directed to submit their
application for fees by October 3, 2005. Any response by General
Star Indemnity shall be submitted by October 17, 2005. Any reply
to General Star Indemnity's response shall be submitted by
October 31, 2005.
IT IS SO ORDERED.
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