Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tadco Construction Corp. v. Peri Framework Systems

November 6, 2006

TADCO CONSTRUCTION CORP., PLAINTIFF,
v.
PERI FRAMEWORK SYSTEMS, INC., DEFENDANT.



The opinion of the court was delivered by: Glasser, United States Senior District Judge

MEMORANDUM AND ORDER

INTRODUCTION

Tadco Construction Corp. ("Tadco" or "Plaintiff") commenced an action against PERI Formwork Systems, Inc. ("PERI" or "Defendant") in the Supreme Court of the State of New York, County of Queens via Summons with Notice. PERI timely removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446 and Local Civil Rule 81.1 based on diversity of citizenship between Plaintiff and Defendant and the amount in controversy exceeding seventy-five thousand dollars, exclusive of interest and costs. Before the Court are Defendant's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(5) on the grounds that this Court lacks personal jurisdiction over Defendant because it was not properly served and Plaintiff's "cross-motion" to oppose removal.

JURISDICTION

Plaintiff Tadco Construction Corporation is a New York corporation with its principal place of business at 101-61 99th Street, Ozone Park, NY. Defendant PERI Formwork Systems, Inc. is a Maryland corporation with its principal place of business at 7131 Dorsey Run Road, Elkridge, Maryland. The amount in controversy in this matter exceeds seventy-five thousand dollars ($75,000) exclusive of interests and costs. Therefore, this Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.

BACKGROUND

On August 7, 2006, Tadco filed a summons with notice in the Supreme Court of the State of New York, County of Queens, commencing this action against PERI for breach of contract. Tadco's process server, Les Debel, filed an affidavit of service stating that on August 17, 2006, at approximately 9:15 a.m., he went to 614 Corporate Way, STE.2 in Valley Cottage, NY, an office of PERI, and delivered a copy of the summons with notice to Richard Brown, a PERI salesman. In his affidavit, Mr. Debel indicated that Mr. Brown had stated that he was authorized to accept service on behalf of the corporation. However, Mr. Brown has submitted two affidavits saying that he has no such authority and never indicated otherwise to Mr. Debel.

DISCUSSION

I. Cross Motion to Oppose Removal

28 U.S.C. § 1441 provides that "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, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1332 provides that in a civil action, where the plaintiff and defendant are citizens of different states and the amount in controversy exceeds seventy-five thousand dollars, the district courts have original jurisdiction. Because Tadco and PERI are citizens of different states and the amount in controversy exceeds seventy-five thousand dollars, this Court has original jurisdiction and the timely removal was proper.

If the plaintiff asserts grounds to remand the action back to state court, he must make a motion to do so "within 30 days after the filing of a notice of removal." 28 U.S.C. § 1447(c). Unless the basis for a motion to remand is the district court's lack of subject matter jurisdiction, failure to make a timely motion to remand constitutes a waiver. See id. Once the defendant properly removes pursuant to 28 U.S.C. § 1446, removal is complete and all state proceedings are no longer valid. See 28 U.S.C. § 1446(d) ("Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded."). The plaintiff is not given an opportunity to "oppose" removal; the plaintiff's remedy is to file a motion to remand. In this case, Tadco submitted an "Affirmation in Opposition to [Defendant's] Motion to Dismiss and Cross-Motion to Oppose Removal." Since removal was already complete, Tadco's remedy was to make a motion to remand the action back to state court. It has not done so.*fn1 This Court will disregard Tadco's purported Cross-Motion to Oppose Removal. Jurisdiction is proper pursuant to 28 U.S.C. § 1332, and the Court will entertain PERI's motion to dismiss.

II. Motion to Dismiss

PERI has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) alleging that Tadco did not properly serve PERI in this action and therefore has not obtained jurisdiction over PERI. As a threshold matter, the Court notes that removal does not waive a personal jurisdiction objection. See Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 157 n.4 (2d Cir. 1996) ("Plaintiffs also argue that [Defendant] waived his defense of lack of personal jurisdiction by removing to federal court and commencing discovery on the merits after filing his motion to dismiss. We disagree. Removal does not waive any Rule 12(b) defenses."); Heavy Constr. Lumber, Inc. v. Local 1205, Int'l Bhd. of Teamsters, No. 00-6659, 2001 WL 477229, at *4 (E.D.N.Y. Feb. 12, 2001) ("[T]he filing of a removal does not itself waive the jurisdictional defect.").

Fed. R. Civ. P. 12(b)(5) allows a defendant who has not been properly served to file a motion to dismiss for "insufficiency of service of process." Id. Pursuant to Fed. R. Civ. P. 4(h)(1), service upon a corporation may be effected: in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.