United States District Court, E.D. New York
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,
SUPERINTENDENT SUSAN CONNELL, Defendants.
MEMORANDUM & ORDER
L. TOWNES United States District Judge. 
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.
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).
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. (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
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).
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.
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.
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
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). 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).
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.
Motion to Remand
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).
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
28 U.S.C. § 1446(b)(1) (emphasis added).
(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 ...