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Bini S. Park v. John Mcgowan

October 19, 2011

BINI S. PARK, PLAINTIFF,
v.
JOHN MCGOWAN, WENDY MORRIS AND PATRICK J. ABBOTT, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

MEMORANDUM AND ORDER

Plaintiff Bini S. Park commenced this personal injury action in state court against John McGowan, Wendy Morris and Patrick J. Abbott. On July 18, 2011, McGowan and Morris removed the action to this Court, asserting federal subject matter jurisdiction on the basis of diversity of citizenship. On August 18, 2011 -- 31 days later -- Park moved to remand this action to state court. For the reasons set forth below, the motion to remand is denied.

BACKGROUND

Park brought suit in the Supreme Court of the State of New York, Bronx County on May 17, 2011, seeking to recover damages for injuries he allegedly sustained during a three- car accident. Park alleges that he, McGowan and Abbott were each driving one of the cars and that Morris owned the car McGowan was driving. Compl. ¶¶ 22--29.

Park alleges that he is a New Jersey resident, that McGowan and Morris are Canadian residents, and that Abbott is a New York resident. Id. ¶¶ 1--3, 16. Although the complaint did not specify the amount of damages Park seeks to recover, he served a demand for damages of $250,000 on June 29, 2011.

On July 18, 2011, two of the three defendants -- McGowan and Morris -- filed a notice of removal in this Court, asserting there is federal subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(2) due to the purportedly diverse citizenship of the parties. The notice of removal was entered on the docket the next day. Four days before they filed the notice of removal, McGowan and Morris had sent a copy of their notice to Park. On July 20, 2011, Judge Cheryl L. Pollak, the Magistrate Judge assigned to this case, issued an order scheduling an initial conference, which Park's counsel received two days later, on July 22, 2011. On August 18, 2011, Park moved to remand this action to state court.

DISCUSSION A. Removal and Remand Procedures

A defendant in a civil action filed in state court generally may remove that action to a federal district court if the plaintiff could have filed the action in federal court. See 28 U.S.C. § 1441(a); Port Auth. of N.Y. & N.J. v. Am. Stevedoring, Inc., No. 10-CV-99 (JG), 2010 WL 979733, at *1 (E.D.N.Y. Mar. 16, 2010). The procedure for removing a case is initiated when the removing party files a notice of removal in federal court. See 28 U.S.C. § 1446(a).

A motion to remand based on any defect in removal other than a lack of subject-matter jurisdiction "must be made within 30 days after the filing of the notice of removal." 28 U.S.C. § 1447(c). Any non-jurisdictional objection not raised within 30 days of the filing of the notice of removal is waived. See Shapiro v. Logistec USA Inc., 412 F.3d 307, 315 (2d Cir. 2005).

A court generally may not excuse the 30-day limit for non-jurisdictional objections to removal; after 30 days have passed, a court "lack[s] authority under § 1447(c) to remand." Id. (quoting Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 644 (2d Cir. 1993)) (internal quotation marks omitted); see also Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 75 (2d Cir. 2005) (holding that § 1447(c)'s 30-day "deadline is plainly mandatory"). As is always the case, a lack of subject-matter jurisdiction may be raised at any time before entry of judgment. Property Clerk, N.Y. City Police Dep't v. Fyfe, 197 F. Supp. 2d 39, 41--42 (S.D.N.Y. 2002) (citing § 1447(c)). B. Park's Asserted Grounds for Remand Park does not challenge the removing defendants' claims of complete diversity of the parties and that the amount in controversy exceeds $75,000, which are the prerequisites of federal subject matter jurisdiction under 28 U.S.C. § 1332(a)(2).*fn1 Park instead invokes the "forum defendant rule" and the "rule of unanimity" as grounds for remand.

The "forum defendant rule" bars removal if any of the defendants "properly joined and served" is a citizen of the state in which the action is brought. 28 U.S.C. § 1441(b). The "rule of unanimity" requires that, in a case with more than one defendant, the defendants unanimously consent to removal. See Stop & Shop Supermarket Co. v. Goldsmith, No. 10-CV-3052 (KMK), 2011 WL 1236121, at *2 (S.D.N.Y. Mar. 31, 2011); Miller v. First Sec. Invs., Inc., 30 F. Supp. 2d 347, 350 (E.D.N.Y. 1998) ("Although there is no express statutory requirement for joinder or consent by co-defendants, there is widespread agreement among the district courts, including those in the Second Circuit, that 'all named [defendants] over whom the state court acquired jurisdiction must join in the removal petition for removal to be proper.'" (quoting Still v. DeBuono, 927 F. Supp. 125, 129 (S.D.N.Y.), aff'd on other grounds, 101 F.3d 888 (2d Cir. 1996)) (alteration in original)); see also Cal. Pub. Emps. Ret. Sys. v. Worldcom, Inc., 368 F.3d 86, 103 (2d Cir. 2004); Bradford v. Harding, 284 F.2d 307, 309 (2d Cir. 1960) (Friendly, J.). Courts have inferred this rule from § 1441(a)'s language that removal may be made "by the defendant or the defendants," rather than by "a defendant." See Bradford, 284 F.2d at 309.

Both the forum defendant rule and the rule of unanimity are non-jurisdictional objections to removal. See Shapiro, 412 F.3d at 313 (forum defendant rule "is a rule of procedure and does not state a jurisdictional requirement"); Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516--17 (6th Cir. 2003) (rule of unanimity is a non-jurisdictional requirement); Farmland Nat'l Beef Packing Co. v. Stone Container Corp., 98 F. App'x 752, 756 (10th Cir. 2004) ("[T]he lack of unanimous consent is a procedural defect, not a jurisdictional defect."); Borden v. Blue Cross & Blue Shield of W. N.Y., 418 F. Supp. 2d 266, 270 (W.D.N.Y. 2006) (referring to "lack of unanimity" as "a non-jurisdictional defect in the removal proceeding" that may be waived). Accordingly, both objections are waived if the party seeking remand does not timely raise them.

In opposition to Park's motion, McGowan and Morris do not dispute that their removal of this action violates both the forum defendant rule and the rule of unanimity, since Abbott is purportedly a New York citizen and he has not consented to removal.*fn2 Instead, they argue that Park has waived these objections by ...


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