The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Troy Alexander ("plaintiff" or "Alexander") brings suit under 42 U.S.C. § 1983*fn1 and state common law. Plaintiff asserts claims for false imprisonment,*fn2 abuse of process, and malicious prosecution against defendants the County of Onondaga, Assistant District Attorney Kari A. Armstrong ("ADA Armstrong") (collectively "County defendants"), the City of Syracuse, and Steven Stonecypher ("Stonecypher") (collectively "City defendants"). Plaintiff also alleges state common law claims for slander and defamation against defendant Teaketa Lewis ("Lewis").
On March 12, 2008, plaintiff served the City of Syracuse and the County of Onondaga with notices of claims. Plaintiff filed a complaint in the Supreme Court of New York, County of Onondaga and served City defendants with a summons and complaint on June 24, 2008. City defendants removed this action to the United States District Court for the Northern District of New York on July 11, 2008. Lewis was served with plaintiff's complaint on July 15, 2008.*fn3 Plaintiff served County defendants on July 17, 2008.
On November 3, 2008, upon the plaintiff's request, the Clerk entered default against Lewis. On November 14, 2008, plaintiff moved for default judgment against Lewis. On December 8, 2008, Lewis filed a document that is construed as opposition to plaintiff's motion for default judgment, request to vacate the entry of default, and a motion to dismiss.
Alexander filed two motions to remand to state court. City and County defendants opposed remand. City and County defendants filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Alexander opposed these motions. The motions were taken on submission without oral argument.
Because a plaintiff's allegations are accepted as true for purposes of a motion to dismiss, most of the facts are related as stated in plaintiff's complaint and notice of claim. Some ancillary facts provided by defendants are included to provide context to plaintiff's allegations.
According to Lewis, at about 2:00 to 2:30 a.m. on September 20, 2006, she was raped by plaintiff. She did not report the rape until after talking to her probation officer at 9:00 a.m. Lewis's probation officer assisted her in going to the hospital for a rape examination. While she was at the hospital police officers came and she told them her story.
On the same day, September 20, 2006, at approximately 7:30 p.m., Alexander went to the Criminal Investigations Division of the Syracuse Police Department and stated that he had been told that the police were looking for him regarding a rape. Stonecypher, a detective with the Syracuse Police Department, placed Alexander in a locked interrogation room. (Compl. ¶ 2; Notice of Claim ¶ 4.) At the time Stonecypher placed Alexander in the interrogation room, the officer did not know whether plaintiff was a suspect in a rape. (Notice of Claim ¶ 4.) Alexander was not free to leave. Id. ¶ 5. Stonecypher "forcibly took [his] wallet, bible and house keys and laid hold of [him] . . . . [and] falsely, publicly, and maliciously . . . . without reasonable cause accused [him] of the crime of rape." (Compl. ¶ 5.) However, according to Stonecypher, he told plaintiff that he would check into the rape charge but in the meantime plaintiff was free to leave.
Stonecypher contacted the Abused Person's Unit of the Syracuse Police Department to determine whether Alexander was a suspect in a rape case. The City defendants assert that Stonecypher learned that Alexander was in fact a suspect. He continued to question plaintiff, whose story changed. Because plaintiff kept changing his story, Stonecypher decided to continue the questioning.
Meanwhile, at around 8:00 p.m. Lewis called a Detective Lenhart who was an acquaintance of her mother. The detective asked Lewis to come to the station and she complied. While there, at about 11:03 p.m., she identified Alexander as the person who raped her through a photo array. (City Defs.' Mem. Supp. Mot. Dismiss at 10.) Plaintiff admits that Stonecypher had probable cause to detain him after Stonecypher became aware of Lewis's statement. (Notice of Claim ¶ 5.) Stonecypher arrested Alexander at 4:30 a.m. on September 21, 2006. Stonecypher acted with the "knowledge and consent" of the City of Syracuse. (Compl. ¶ 14.)
ADA Armstrong filed an indictment against Alexander in the Supreme Court of New York, County of Onondaga on or about March 15, 2007. (Notice of Claim ¶ 6.) ADA Armstrong charged plaintiff with rape and sodomy. On September 7, 2007, State Supreme Court Judge John Brunetti dismissed that indictment and allowed ADA Armstrong to represent the case to another grand jury on October 23, 2007. Id. ¶ 7.
On October 5, 2007, ADA Armstrong prosecuted plaintiff for unlawful imprisonment for the same acts in Syracuse City Court. Id. at ¶ 8; Compl. ¶ 6. On October 24, 2007, Judge Brunetti dismissed the charges brought in State Supreme Court. (Notice of Claim ¶ 9.) On January 22, 2007, Syracuse City Court Judge James Cecile dismissed the unlawful imprisonment charge for lack of jurisdiction. Id. ¶ 10. ADA Armstrong acted with the "knowledge and consent" of her employer. (Compl. ¶ 14.)
Plaintiff moves to remand arguing that City defendants' removal was untimely because his notice of claim was the initial pleading. Alexander also argues that removal was defective because City defendants failed to obtain consent for removal from all defendants.
In order to be timely, a notice of removal must be filed within thirty days after a defendant has received a copy of the initial pleading. See 28 U.S.C. § 1446(b). With regard to what constitutes an initial pleading, General Municipal Law states: "a notice of claim is required by law as a condition precedent to the commencement of an action." N.Y. Gen. Mun. Law § 50-e(1)(a) (emphasis added). The language of the statue demonstrates that a notice of claim must be filed before commencement of a lawsuit and cannot be viewed as an initial pleading. Besides the plain language of the statute, New York courts treat a notice of claim as a condition precedent, not a pleading. See Scantlebury v. N. Y. City Health & Hosps. Corp., 4 N.Y.3d 606, 613 (2005).
Usually all defendants must consent to removal based on the rule of unanimity. See Tate v. Mercedes-Benz USA, Inc., 151 F. Supp. 2d 222, 224 (N.D.N.Y. 2001) (Kahn, J.). However, there are three recognized exceptions to the rule of unanimity. These exceptions are: "(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)." Ell v. S.E.T. Landscape Design, Inc., 34 F. Supp. 2d 188, 194 (S.D.N.Y. 1999).
Based on New York law, Alexander's complaint was the initial pleading. He filed his complaint on June 24, 2008. City defendants' filed a notice of removal on July 11, 2008. That notice of removal was within 30 days of Alexander's complaint. Therefore, City defendants' notice of removal was timely.
The City defendants had no consent to removal from the other defendants. Thus, the issue is whether the circumstances here fall within a recognized exception to the rule of unanimity.
The City defendants' notice of removal was filed on July 11, 2008. Alexander served Lewis and the County defendants on July 15, 2008, and July 17, 2008, respectively. For both defendants, service occurred after City defendants' filed their notice of removal. Neither Lewis nor the County defendants had been served with plaintiff's complaint when City defendants filed their notice of removal, a recognized exception to the rule of unanimity. Therefore, City defendants' removal was not defective. See Ell, 34 F. Supp. 2d at 194.
Because City defendants' notice of removal was timely and not defective, plaintiff's motion ...