United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
case, in which Linium, LLC is suing its former employee-Sean
Bernhoit-over his alleged breach of a non-compete agreement,
was originally filed in New York state court on November 2,
2016. Dkt. No. 1-1 (“Complaint). On February 22, 2017,
Bernhoit removed the action to federal court. Dkt. No. 1
(“Notice of Removal”).
before the Court is Linium's motion to remand the case
back to state court. Dkt. No. 10 (“Motion to
Remand”); see also Dkt. Nos. 10-7
(“Memorandum”), 13 (“Opposition”),
14-3 (“Reply”). According to Linium, Bernhoit
failed to remove the case within the statutory thirty-day
deadline, a question that turns on whether Bernhoit was
properly served last November. But the parties also failed to
raise an issue of subject matter jurisdiction concerning
Linium's citizenship. For the following reasons, Bernhoit
is directed to amend his Notice of Removal to resolve the
jurisdictional issue, and this motion is referred to
Magistrate Judge Christian F. Hummel for further proceedings.
to the Complaint, Linium-an information-technology consulting
firm-hired Bernhoit as a Senior Vice President in October
2008. Compl. ¶¶ 4, 13. As a condition of his
employment, Bernhoit was required to sign a non-compete
agreement that barred him from soliciting Linium's
clients and employees and from working for its competitors.
Id. ¶¶ 18-19. In December 2015, Bernhoit
left Linium and joined Peloton Inc., a “direct
competitor of Linium.” Id. ¶¶ 31-32.
Bernhoit then recruited or attempted to recruit several
Linium clients and employees, encouraging them to jump ship
and join him at Peloton. Id. ¶¶ 33-37.
November 2, 2016, Linium sued Bernhoit in the New York
Supreme Court for Albany County, alleging breach of the
non-compete agreement. Compl.; Dkt. No. 10-1 (“First
Hillmann Declaration”) ¶¶ 3-4. Because
Bernhoit lived in California, Linium hired a California-based
process server to serve Bernhoit at his home. First Hillmann
Decl. ¶¶ 5-6.
process server-Harry Kazakian-claims to have personally
served Bernhoit at his home in Calabasas, California, on
November 5, 2016, at 5:22 PM. Dkt. No. 10-3 (“First
Kazakian Affidavit”). In a later affidavit, Kazakian
provided more detail about the encounter. Dkt. No. 10-5
(“Second Kazakian Affidavit”). According to
Kazakian, he arrived at Bernhoit's house, knocked on the
front door, and announced himself. Id. ¶ 9-10.
“The individual inside identified himself as Mr.
Bernhoit behind the closed door, but would not open the
door.” Id. ¶ 10. Bernhoit remained behind
the door, shouting at Kazakian to get off his property.
Id. ¶ 11. Kazakian “responded by
announcing service loudly, ” and then placed the
documents “on the door jam of the front door.”
Id. ¶ 11. In this second affidavit, Kazakian
listed Bernhoit's address as being in Burbank,
California, as opposed to Calabasas. Id. ¶ 8.
But in yet another affidavit, Kazakian claims this was a
“scrivener's error, ” and that he indeed
served Bernhoit at his home in Calabasas (as Kazakian said in
the original service affidavit). Dkt. No. 14 (“Third
Kazakian Affidavit”) ¶¶ 3-8; see
also Dkt. No. 14-1 (“Second Hillmann
Declaration”) ¶¶ 3-7 (claiming responsibility
for the “scrivener's error” and confirming
the version of events in Kazakian's affidavit).
tells a different story. According to Bernhoit, he left his
home in Calabasas at around 9:00 AM and did not return until
at least 11:00 PM. Dkt. No. 13-1 (“Bernhoit
Affidavit”) ¶¶ 5, 9. Bernhoit catalogues his
movements throughout the day, including appearances at his
daughter's water polo match, a movie theater with his
son, and ultimately his grandmother's birthday party.
Id. ¶¶ 6-8. Along with his sworn
statements, Bernhoit includes various photographs and
screenshots that purportedly confirm his account, the most
relevant of which is a photograph with his grandmother
time-stamped at 5:59 PM. Dkt. No. 13-4. Bernhoit denies
that he was ever served by Kazakian. Bernhoit Aff. ¶ 11.
He also includes an affidavit from his girlfriend, Tiffani
Brooks, who confirms that Bernhoit left the house at around
9:00 AM, that he was at the restaurant for his
grandmother's party at around 5:30 PM, that she never saw
a process server or any other delivery at the house that day,
and that no one was home at 5:22 PM. Dkt. No. 13-5
(“Brooks Affidavit”) ¶¶ 5-9.
his claim that he was never served, Bernhoit must have been
made aware of the lawsuit through some other means, since in
mid-November, attorneys from the law firm of Nixon Peabody
contacted Linium's counsel, claiming to represent
Bernhoit in this case. First Hillmann Decl. ¶ 10.
Because Bernhoit had not yet filed a responsive pleading, on
December 13, 2016, Linium mailed him another copy of the
summons and Complaint, a requirement for default judgment
under New York law. Id. ¶ 11. Nixon Peabody
then again contacted Linium's counsel, asking for an
extension of time to answer the Complaint-a request that
Linium granted. Id. ¶ 12. In a December 22
conversation regarding a potential settlement, a Nixon
Peabody attorney claimed that the attempted service on
Bernhoit was improper. Id. ¶¶ 13-14. After
(and perhaps in exchange for) additional extension requests,
Nixon Peabody offered to accept process on behalf of Bernhoit
and thus resolve the alleged service issue. Id.
¶¶ 15-17. Linium again agreed to the extension
request, id. ¶ 17, and, according to Bernhoit,
his counsel accepted service on January 24, 2017, Opp'n
of responding to the Complaint, Bernhoit-now through a
different law firm called Girvin & Ferlazzo-filed his
Notice of Removal on February 22, 2017. Notice of Removal. In
the notice, Bernhoit claims federal jurisdiction based on
diversity of the parties' citizenships. Id.
¶ 6. In support of this claim, Bernhoit alleges that he
is a citizen of California while Linium is a limited
liability company both organized in and with its principal
place of business in New York. Id. ¶¶ 7-8.
responded by filing its Motion to Remand, arguing that
Bernhoit missed the thirty-day deadline for removal. Mem. at
5; see also 28 U.S.C. § 1446(b)(1) (requiring
notices of removal to be filed within thirty days after the
defendant is served). Because he was served on November 5,
2016, and received another copy of the Complaint by mail in
December, the February 22 notice was untimely. Mem. at 5.
Bernhoit responds by arguing that he wasn't properly
served on November 5, and thus the thirty-day deadline should
be measured from January 24, 2017, when his counsel claims to
have accepted service on his behalf. Opp'n at 1.