Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williams v. Connell

United States District Court, E.D. New York

June 28, 2017

SHIKEMA WILLIAMS, administratrix of the estate of FREDERICK VELEZ, CHRISTINE COX, FREDERICK HALL, and SHAMIA HALL, by her mother and natural guardian, SABRINA HALL, Plaintiffs,


          SANDRA L. TOWNES United States District Judge. [1]

         On April 20, 2012, Plaintiffs initiated this Section 1983 action in New York State Supreme Court, Kings County ("Kings County"). On July 19, 2012, a majority of the Defendants filed or consented to a notice of removal in this Court, and all Defendants not a party to that notice later consented to removal in writing. Defendants later filed a motion to transfer the action to the Northern District, and Plaintiffs cross-moved for remand. (ECF Nos. 23 & 25). Because Plaintiffs' arguments for remand are meritless, and because transfer is in the interests of justice and would increase convenience to the majority of witnesses and parties, Plaintiffs' motion is DENIED and Defendants' motion is GRANTED.

         I. BACKGROUND

         This case arises from the death of Frederick Velez ("Velez" or the "Decedent"), an inmate at Oneida Correctional Facility ("Oneida" or the "Oneida Facility") who died as a result of a fight with another inmate in April of 2009. (First Am. Compl. ("FAC"), ECF No. 36, at 1-2). Plaintiffs are the Decedent's relatives and the representative of his estate. (Id.) The named defendants, sued only in their individual capacities, are seventeen New York State Department of Corrections ("NY-DOCS") employees, including the former Oneida Superintendent, the former Deputy Superintendent, and various correctional officers. (FAC at 1-14). Plaintiffs base their section 1983 claims on violations of the Decedent's 8th and 14th Amendment rights, alleging that Defendants acted with deliberate indifference in causing his death by failing to supervise the inmate who stabbed him and by needlessly delaying medical treatment. (Id. at 1-2, 23-31).[2]

         Plaintiffs initiated this suit in Kings County two months after Velez's death. It is undisputed that Plaintiffs sent all named Defendants a summons and complaint, two copies of a statement of service and a statutory acknowledgement of receipt form, and return envelopes, postage prepaid, in an effort to effect service NY CPLR § 312-a, which is effectively New York's waiver of service provision.[3] (Declaration of Ameer Benno ("Benno Decl."), Ex. 2, ECF No. 28-2.) The parties dispute, however, when service was effected (and removal deadlines therefore triggered) on two Defendants, Captain Earl Bell ("Bell") and Corrections Officer Leslie Bailey ("Bailey").

         Plaintiffs' filings show that Plaintiffs' attorney mailed the relevant materials, including the aforementioned CPLR 312-a acknowledgment form, by United States Postal Service ("USPS") first-class mail to Defendant Bailey on June 29, 2012, and to Defendant Bell on July 2 of the same year. (Benno Deck, Ex. 2). USPS confirmation sheets show that the delivery addressed to Bailey, "c/o Green Correctional Facility, " was delivered to a P.O. Box on July 2, 2012. (Benno Decl., Ex. 3). Another confirmation sheet shows that delivery addressed to Bell, "c/o NY DOCS, " was delivered on July 15. (Benno Decl., Ex. 4).

         On July 19, Assistant New York Attorney General Neal Shevlin ("Shevlin") filed a notice of removal on behalf of seven named defendants, not including Bell or Bailey. (Notice of Removal, ECF No. 1). Plaintiffs do not contest that those seven defendants had by that time signed and returned the NY CPLR 312-a acknowledgement and receipt form to Plaintiffs' counsel within the prior thirty days. Five days later, Shevlin filed a declaration of service on Plaintiffs' Counsel, stating in a footnote that the "Office of the Attorney General anticipates representing all named defendants once they have requested representation." (See Declaration of Service, ECF No. 2). The same day he also filed with this Court a "Declaration of Filing, " attesting under oath that he had caused to be filed "with the King's County Clerk defendants' NOTICE OF FILING OF NOTICE OF REMOVAL" and included a stamped-received copy. (ECF No. 4).

         On July 25 Shevlin wrote to Plaintiffs' lead counsel, Ameer Benno, stating that he had received requests for representation from all but two defendants, Bailey and Bell. (Declaration of Neil Shevlin ("Shevlin Decl."), Ex. K, ECF No. 30-11). Regarding those two, he explained:

It is my understanding that Capt. Bell is on vacation, so presumably we will hear from him when he gets back. As for Mr. Bailey, the Inmate Records Coordinator at Greene Correction Facility informed me that Bailey has not yet received the complaint in this case.


         One day later, on July 26, 2012, Shevlin filed a Notice of Appearance on behalf of eight of the ten remaining defendants, leaving only Defendants Bell and Bailey unrepresented and thus far non-responsive to the purported service of process for the state action. (ECF No. 5). That same day he filed a Notice of Consent to Removal on behalf of the same eight defendants. (ECF No. 6). Thus, as of July 26 all named defendants except Bell and Bailey had either been party to the July 19 Notice of Removal or consented to removal. Again, Plaintiffs do not dispute that each of those parties either joined the July 19 notice of removal or consented to it not more than 30 days after signing and returning their CPLR 312-a acknowledgement forms.

         Rather, Plaintiffs base their argument for remand on the timeliness of the responses to their efforts to serve Defendants Bailey and Bell. Defendant Bailey, who according to Shevlin's email had not yet received the process sent to him "c/o Green Correctional Facility, " evidently received it shortly afterwards and signed and returned his CPLR 312-a acknowledgment form on July 25, six days after his codefendants removed the action. (Shevlin Decl., Ex. G). Shevlin then filed a Notice of Appearance and a Notice of Consent to Removal on Bailey's behalf on August 6. (ECF Nos. 8-9).[4] One day later, on August 7, 2012, Defendant Bell, apparently having returned from vacation, signed and returned his CPLR 312-a form, nineteen days after removal. (Shevlin Decl., Ex. I). Shevlin appeared on his behalf and filed his Notice of Consent to Removal the same day. (ECF Nos. 11-12).

         On November 27, 2015, Defendants moved to transfer the case to the Northern District of New York, where the underlying events took place. (ECF No. 23). Plaintiffs opposed that motion and filed a cross-motion to remand, contending that Defendants Bell and Bailey's belated consent rendered removal untimely. (ECF Nos. 26-27). The Court addresses those motions in reverse order below.


         A. Motion to Remand

         "Removal jurisdiction must be strictly construed, both because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns." In re NASDAQ Market Makers Antitrust Litigation, 929 F.Supp. 174, 178 (S.D.N.Y.1996), (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)). Further, "the burden is on the removing party to prove that it has met the requirements for removal." Codapro Corp. v. Wilson, 997 F.Supp. 322, 325 (E.D.N.Y.1998).

         Removal of actions to federal court is governed by 28 U.S.C. § 1441, which provides that "[a]ny civil action brought in a State court of which the district courts of the United States, have original jurisdiction, may be removed by the defendant... to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). 28 U.S.C. § 1446(b) sets forth the procedural requirements. As relevant here, that section imposes distinct but related timeliness and consent requirements. Regarding timeliness, the statute provides:

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 setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1) (emphasis added).

         Subsection (b)(2)(A) of the statute also requires that "all defendants who have been properly joined and served must join in or consent to the removal of the action." This consent requirement, prior to its codification at Section 1446(b) by the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (the "FCJVCA"), Pub.L. No. 112-63, 125 Stat. 758, has long been known as the "rule of unanimity." See, e.g., Bradford v. Harding,284 F.2d 307, 309 (2d Cir.1960) (recognizing that "all the defendants must join in seeking removal."); H.R. REP. NO. 112-10, at 13-14 (2011), 2011 U.S.C.C.A.N. 576 ("new ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.