The opinion of the court was delivered by: James Orenstein, Magistrate Judge
Plaintiff St. Vincent's Hospital of Staten Island (the "Hospital") seeks to have this action remanded to the state court in which it was originally filed, and from which it was removed to this court by third-party defendant United Teamster Fund ("UTF"). Docket Entry ("DE") 5. UTF and its third-party co-defendant, the 1199 SEIU Benefit & Pension Funds ("SEIU") contend that the case was properly removed and should be resolved in this court. DE 6 (UTF); DE 7 (SEIU). For the reasons set forth below, I conclude that this court lacks jurisdiction and I therefore respectfully direct the Clerk to remand the action, subject to a stay that will permit the parties to seek review by the assigned district judge.
On May 17, 2004, the Hospital filed a claim against defendant Antoinette Taylor ("Taylor") in the Civil Court of the City of New York, County of Richmond, seeking reimbursement for Taylor's alleged failure to pay medical expenses incurred during the birth of her child. Over two years later, Taylor filed a third-party complaint against UTF and SEIU, alleging that they improperly failed to pay the insurance claims for the medical bills at issue in the Hospital's complaint. See Docket Entry ("DE") 1 (including, among other documents, UTF's Notice of Removal ("Initial Notice") and Taylor's Third-Party Summons with Endorsed Complaint ("Third-Party Complaint")). On March 6, 2007, UTF unilaterally removed this case to federal court, asserting that Taylor's claim for unpaid insurance benefits falls within the scope of the civil enforcement provisions of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1332(a)(1)(B), and is therefore preempted by federal law. Initial Notice at 2; see also Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 64 (1987). Upon examination of the Initial Notice, I directed the parties to submit briefs on the propriety of the removal. DE 4. In particular, I requested the parties to address the issue of whether a third-party defendant such as UTF may properly remove a case to federal court under 28 U.S.C. § 1441(a), and if so, whether such removal requires the consent of third-party co-defendant SEIU. See DE 4 at 2-3.
On March 27, 2007, UTF filed a letter-brief asserting the propriety of its removal, and at the same time submitted a proposed amended notice of removal (the "Amended Notice") that included an assertion that third party co-defendant SEIU consented to the removal. DE 5. In its submission, UTF acknowledged that third-party defendants are generally not permitted to remove cases to federal court under 28 U.S.C. § 1441(a) (which permits removal only "by the defendant or defendants"), but it argued that removal in this case is nevertheless permitted under 28 U.S.C. § 1441(c), which it invoked in the Amended Notice. See id. SEIU likewise filed a letter-brief in favor of removal, arguing that both the Initial Notice and the Amended Notice were timely filed and that federal court is the appropriate forum for the instant litigation. DE 7.
The Hospital filed its own letter-brief the same day, making arguments against the propriety of removal that I deem to be a motion for remand. DE 6. It argued that remand is appropriate because third-party defendants may not remove a case to federal court under 28 U.S.C. § 1441(a), that the Initial Notice was untimely filed, that UTF has waived its right to argue for removal under 28 U.S.C. § 1441(c), and that removal under Section 1441(c) is in any case impermissible. Id. Defendant and third-party plaintiff Taylor has not appeared in this action through counsel or otherwise, and therefore has offered no input on the instant issue.
A party asserting jurisdiction bears the burden of proving that a case is properly in federal court, United Food & Commercial Workers Union, Local 919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). A removing party therefore bears the burden of demonstrating both the existence of subject-matter jurisdiction and compliance with the relevant procedural requirements. Moreover, just as a court lacks the authority to excuse a jurisdictional defect, there is nothing in the removal statute to suggest that a court has the discretion to overlook or excuse a failure to meet the removal statute's requirements. Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 (E.D.N.Y. 1998) (citing cases). As discussed below, while I disagree with the Hospital's objections relating to timeliness and to consent, I do agree that in the circumstances of this case, the removal by a third-party defendant is improper.
To be timely, a notice of removal must be filed "within thirty days after the receipt by the defendant ... of a copy of the initial pleading ... or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant." 28 U.S.C. § 1446(b).
The Hospital argues that remand is proper because "UTF has failed to state when it first received a copy of [Taylor's] third-party complaint or to even aver that [the] notice of removal was filed within thirty days of receipt thereof." DE 6 at 3. Taylor's Third-Party Complaint was filed in state court on October 17, 2006, and neither the Initial Notice nor the Amended Notice specifies when UTF received it, thus giving rise to the possibility that the Initial Notice filed on March 6, 2007, was untimely filed. SEIU's letter-brief, however, asserts that "the Third-Party Defendants were served with the [Third-Party Complaint] ... on or about February 28, 2007," DE 7 at 1, which would mean both the Initial Notice and Amended Notice were timely filed in conformance with Section 1446(b).
UTF's failure to comply with its obligation to include a clear statement that removal is timely might normally warrant remand. See, e.g., Cassara v. Ralston, 832 F. Supp. 752, 754 (S.D.N.Y. 1993). SEIU's letter-brief, however, corrects this procedural error by specifying when the Third-Party defendants received the Third-Party Complaint. DE 7. In the absence of any information that contradicts SEIU's account, UTF's failure to specify when it received the Third-Party Complaint is "one of form" rather than one of substance, and therefore does not require a remand. See id. at 754 (quoting CBS Inc. v. Snyder, 762 F. Supp. 71, 74 (S.D.N.Y. 1991)) ("Pro forma defects cannot suffice to deprive a party of a plain entitlement to a federal forum.").
Although 28 U.S.C. § 1446 does not explicitly require that all defendants must consent to a removal, courts have consistently inferred that the statute does in fact require such consent. See, e.g., Bill Wolf Petroleum Corp. v. Vill. of Port Washington North, 489 F. Supp.2d 203, 207 (E.D.N.Y. 2007); Beatie and Osborn LLP v. Patriot Scientific Corp., 431 F. Supp.2d 367, 383 (S.D.N.Y. 2006); Owczarek v. The Austin Co., 2004 WL 625273, at *1 (W.D.N.Y. Feb. 11, 2004). This "rule of unanimity" applies to cases removed pursuant to diversity jurisdiction or -- as in this case -- pursuant to federal question jurisdiction. Borden v. Blue Cross and Blue Shield of Western N.Y., 418 F. Supp.2d 266, 270 (W.D.N.Y. 2006) (citing Ell v. S.E.T. Landscape Design, Inc., 34 F. Supp.2d 188, 193 (S.D.N.Y. 1999)). "While courts generally do not require all defendants to sign the removal petition ...