UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 27, 2010
BANVILLE & JONES WINE MERCHANTS, INC., PLAINTIFF,
LA CASA DEL REY S.A. AND BUENA CEPA WINES, LLC, DEFENDANTS.
The opinion of the court was delivered by: McKENNA, D.J.
MEMORANDUM AND ORDER
This action was filed in the New York Supreme Court, New York County on or about October 27, 2009.
The summons and complaint were served on defendant Buena Cepa Wines, LLC ("Buena Cepa") on or about November 7, 2009. On or about March 1, 2010, plaintiff and defendant La Casa del Rey, S.A. ("La Casa") entered into a written stipulation pursuant to which counsel for La Casa agreed to accept service of the summons and complaint on March 1, 2010.
On or about March 9, 2010, La Casa filed a notice of removal, pursuant to 28 U.S.C. § 1446, asserting that plaintiff is a citizen of Delaware and New York, Buena Cepa of Florida, and La Casa of Argentina. Buena Cepa has consented to removal.
On or about March 29, 2010, plaintiff moved for remand, claiming that the notice of removal was untimely because the 30-day period set by 28 U.S.C. § 1446(b), within which a notice of removal must be filed, began to run with the November 7, 2009 service on Buena Cepa.*fn1
In the first place, it is clear that the 30-day period must be measured from service, "not by mere receipt of the complaint unattended by any formal service." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999).
The parties, in an apparent absence of binding authority, have cited district court cases and decisions of circuits other than the Second, some of which support a rule which would run the 30-day period of 28 U.S.C. § 1446(b) for all defendants from the date of service of the first served defendant, see, e.g., Yang v. ELRAC, Inc., No. 03 Civ. 9224, 2004 WL 235208, at *1 (S.D.N.Y. Feb. 6, 2004), and some of which support a rule which would run the 30-day period for each defendant from the date that defendant was served, see, ~, Varela v. Flintlock Constr. Inc., 148 F.Supp.2d 297,300 (S.D.N.Y. 2001).
The Court finds the latter line of cases the most persuasive, for the reasons set forth in Varela, so that La Casa's March 9, 2010 Notice of Removal -- La Casa having been served on March 1, 2010 -- is timely. Accordingly, plaintiff's motion for remand is denied.*fn2