United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
COTE UNITED STATES DISTRICT JUDGE
plaintiff filed this lawsuit in the Bronx County Supreme
Court on February 10, 2017. On February 14, the
plaintiff's process server served a copy of the summons
and complaint on an individual named “Rem” at
defendant Iron Mountain's facility in Hicksville, New
York. The sworn affidavits of the plaintiff's process
server describe Rem as a “male of African
ancestry” and “having a Caribbean accent and
being from Guyana, South America.” According to the
affidavits, Rem advised the process server that he was
“authorized to accept legal papers” on behalf of
the corporate defendant Iron Mountain, as well as the
individual defendants Randy Crego (“Crego”) and
Stuart Meyer (“Meyer”).
their notice of removal, the defendants claim that the only
employee at the Hicksville facility whose name resembles
“Rem” is Mohanlall Surujpaul, who goes by
“Ram.” Ram is a Record Center Specialist at the
Hicksville facility who is paid hourly.
4, the defendants filed a notice of removal. On May 16, the
plaintiff filed a motion to remand the case to the Bronx
County Supreme Court for failure to timely remove. For the
reasons set forth below, the plaintiff's motion to remand
to 28 U.S.C. § 1446(b)(1), a “notice of removal of
a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading.” If
defendants are served at different times, however, and
“a later-served defendant files a notice of removal,
any earlier-served defendant may consent to the removal even
though that earlier-served defendant did not previously
initiate or consent to removal.” 28 U.S.C. §
1446(b)(2)(C); see also Pietrangelo v. Alvas Corp.,
686 F.3d 62, 64, 64 n.3 (2d Cir. 2012) (noting how the 2011
amendment of § 1446 codified the later-served rule).
Finally, pursuant to 28 U.S.C. § 1447, “[a] motion
to remand the case on the basis of any defect other than lack
of subject matter jurisdiction must be made within 30 days
after the filing of the notice of removal under section
the parties dispute whether the defendants' notice of
removal was timely under 28 U.S.C. § 1446(b)(1). The
defendants argue that the thirty day removal period has not
yet commenced since none of the defendants has been properly
served. The plaintiff, by contrast, asserts that it is the
“receipt of notice of the pendency of the
lawsuit” -- not service of process -- that triggers the
thirty-day removal period.
Formal service of process, not receipt of notice,
triggers the thirty-day removal period under
28 U.S.C. § 1446(b)(1).
Murphy Brothers, Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344 (1999), the Supreme Court held that a
named defendant's time to remove is triggered by service
of the complaint, not by “mere receipt of the complaint
unattended by any formal service.” Id. at 348.
The Court declined to interpret the phrase “receipt . .
. or otherwise” in 28 U.S.C. § 1446(b)(1) to
include any other means of service besides formal service of
process. Id. at 350-56. The Second Circuit has
confirmed that “the commencement of the removal period
[can] only be triggered by formal service of process,
regardless of whether the statutory phrase ‘or
otherwise' hints at some other proper means of receipt of
the initial pleading.” Whitaker v. Am. Telecasting,
Inc., 261 F.3d 196, 202 (2d Cir. 2001). Accordingly, it
is formal service of process -- not, as the plaintiff
contends, notice of the pendency of the lawsuit -- that
triggers the thirty day removal period.
Defendant Meyer was not properly served; thus, the
defendants' notice of removal is timely under 28
U.S.C. § 1446(b)(2)(C).
York law permits personal service on a natural person
“by delivering the summons within the state to a person
of suitable age and discretion at the actual place of
business” of the person to be served and, within twenty
days thereafter, mailing a copy of the summons to the actual
place of business “in an envelope bearing the legend
‘personal and confidential.'” N.Y. C.P.L.R.
§ 308(2). “Actual place of business”
includes “any location that the defendant, through
regular solicitation or advertisement, has held out as its
place of business.” N.Y. C.P.L.R. § 308(6). In
order for a place to be a defendant's “actual place
of business, ” the defendant “must be physically
present with regularity and must be shown to regularly
transact business at that place.” Bridgehampton
Nat'l Bank v. Watermill Heights Assocs., 596
N.Y.S.2d 321, 324 (Sup. Ct. 1993) (citation omitted). It
follows that “service is invalid if the delivery is
made at a place where the defendant maintained his place of
business in the past, but does not do so at the time of
service.” Glasser v. Keller, 567 N.Y.S.2d 981,
982 (Sup. Ct. 1991).
unnecessary to address the defendants' evidence that none
of the defendants has yet been served properly. It is beyond
dispute that Meyer was not. Meyer has not worked for Iron
Mountain since this lawsuit commenced, and was never
physically present with regularity or transacting any
business from the Hicksville facility. Thus, the
defendants' notice of removal is timely under 28 U.S.C.
§ 1446(b)(2)(C) because Meyer, a later-served defendant,
has not been properly served.
it is hereby ORDERED that the plaintiff's ...