United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD, DISTRICT JUDGE.
action, removed from the Supreme Court of the State of New
York, New York County, concerns the concealment of the body
of the mutilated murder victim, Joey Comunale,
Plaintiff's 26-year-old son. Plaintiff Patsy Comunale
moves to remand the case to state court and seeks
attorneys' fees and costs resulting from the removal. For
the following reasons, Plaintiff's motion to remand is
granted, and her application for attorneys' fees and
costs is denied.
25, 2017, Plaintiff commenced this action in New York State
Supreme Court, County of New York. The Complaint alleges that
Plaintiff is a citizen of the State of Connecticut and
Defendant is a citizen of the State of New York. The
Complaint raises two state common law claims: (1) violation
of the right of sepulcher; and (2) intentional infliction of
emotional distress. The parties do not dispute that the
amount in controversy exceeds $75, 000. On July 19, 2017,
Plaintiff filed an affidavit of service, stating that
Defendant was personally served on June 27, 2017, and was
served by mail at Defendant's personal residence and
actual place of business on June 29, 2017. On July 26, 2017,
Defendant timely removed this action to this Court, pursuant
to 28 U.S.C. §§ 1332, 1441 and 1446 on the basis of
diversity jurisdiction. Because substituted service was made
by leaving copies of the Summons and Complaint with doormen,
service of process was not considered to be complete until
July 29, 2017, 10 days after the filing of the affidavit of
service. CPLR § 308(2); see also Creative Kids Far
E., Inc. v. Griffin, No. 15 Civ. 6027, 2016 WL 8710479,
at *2 (S.D.N.Y. Jan. 22, 2016) (“[S]ubstituted service
in New York is only complete upon the expiration of ten days
after proof of service is filed.”) (internal citations
omitted). On July 30, 2017, Defendant filed an Amended Notice
of Removal. In addition to repeating the same basis for
removal, the Amended Notice clarified that because Defendant
filed the Notice of Removal prior to the date on which he was
“properly joined and served, ” the removal is
proper despite Defendant's being a New York citizen.
See 28 U.S.C. § 1441(b)(2) (stating that an
action otherwise removable solely on the basis of diversity
jurisdiction may not be removed if any of the parties
“properly joined and served as defendants” is a
citizen of the forum state).
August 21, 2017, Plaintiff moved to remand this action to the
state court pursuant to 28 U.S.C. § 1447(c), and
requested that this Court award attorneys' fees and costs
associated with the removal action.
a removal is challenged, the removing party ‘bears the
burden of showing that federal jurisdiction is
proper.'” Landesbank Baden-Wurttemberg v.
Capital One Fin. Corp., 954 F.Supp.2d 223, 225 (S.D.N.Y.
2013) (quoting Montefiore Med. Ctr. v. Teamsters Local
272, 642 F.3d 321, 327 (2d Cir. 2011)). “It
frequently is said that federal courts should strictly
construe the general removal statute and resolve doubts in
favor of remand.” 14B Charles Alan Wright & Arthur
R. Miller, Fed. Prac. & Proc. Juris. § 3721 (4th
ed.) (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108-09 (1941)). However,
“the federal court should be cautious about remand,
lest it erroneously deprive defendant of the right to a
federal forum.” Contitrade Servs. Corp. v. Eddie
Bauer, Inc., 794 F.Supp. 514, 516 (S.D.N.Y. 1992)
(citation and internal quotation marks omitted).
forum defendant rule prohibits removal if “any of the
parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b)(2) (emphasis added).
The parties not “properly joined and served” are
disregarded for the purpose of the forum defendant rule.
In re IntraLinks Holdings, Inc. Derivative Litig.,
No. 11 Civ. 9636, 2013 WL 929836, *1 (S.D.N.Y. Mar. 11,
2013); see 28 U.S.C. § 1441(b)(2). “The
rationale behind this rule is that federal diversity
jurisdiction is not necessary to protect defendants from
state-court bias (the original purpose of diversity
jurisdiction) when the defendant is a citizen of the forum
[state] and thus, if anything, stands to benefit from any
possible state-court bias.” In re IntraLinks
Holdings, Inc., 2013 WL 929836, at *1. In New York,
service of process is deemed complete ten days after the
filing of proof of service. CPLR § 308(2); accord
Creative Kids, 2016 WL 8710479, at *2.
“properly joined and served” restriction in the
removal statute prevents abuse of the foreign defendant rule
by improper joinder of a defendant who is never served and
never becomes a genuine party to the lawsuit. In re:
Propecia (Finasteride) Prods. Liab. Litig., No. 12 Md.
2331, 2016 WL 5921070, at *1 (E.D.N.Y. Oct. 11, 2016). The
Second Circuit has not addressed whether the forum defendant
rule bars removal of an action by an in-state defendant
before the completion of service of process.
Forum Defendant Rule
forum defendant rule bars Defendant's removal of the
action to this Court, even though service of process was not
complete at the time of removal. See, e.g.,
id., at *1 (finding that the forum defendant rule
bars an in-state defendant's removal to federal court
even though the process of service was not complete at the
time of removal); Fiskus v Bristol-Myers Squibb Co.,
No. 14 Civ. 3931, 2014 WL 4953610, at *2 (S.D.N.Y. Oct. 1,
2014) (same); In re Intralinks Holdings, 2013 WL
929836, at *1 (same); but see, e.g., Cheung v.
Bristol-Myers Squibb Co., No. 17 Civ. 6223, 2017 WL
4570792, at *4 (S.D.N.Y. Oct. 12, 2017) (denying motion to
remand cases that were part of a products liability
multi-district litigation because the process of service on
the in-state defendants was not complete at the time of
removal); Deveer v. Gov't Emps. Ins. Co., No. 07
Civ. 4437, 2008 WL 4443260, at *4 (E.D.N.Y. Sept. 26, 2008)
(same). Generally, the plain language of a statute controls
its interpretation, but a court may look outside the text of
the statute where its literal application would lead to an
absurd result. Nat'l R.R. Passenger Corp. v.
Nat'l Ass'n of R.R. Passengers, 414 U.S. 453,
693 (1974); accord Eicher v. Macquarie Infrastructure
Mgmt. (USA) Inc., 12 Civ. No. 5617, 2013 WL 4038601, at
*8 (S.D.N.Y. Aug. 8, 2013).
the sole defendant is a citizen of the State of New York.
Plaintiff brings only state law claims. To permit removal
simply because it occurred days before service on the
in-state defendant was complete would lead to an irrational
result. “[F]ederal diversity jurisdiction is not
necessary to protect defendants from state-court bias . . .
when the defendant is a citizen of the forum suite and thus,
if anything, stands to benefit from any possible state-court
bias.” In re Intralinks Holdings, 2013 WL
929836, at *1. And Defendant is a genuine party to the
lawsuit. There is no justification for permitting Defendant
here to remove the case to federal court. To permit removal
in these circumstances would encourage a race to removal by
in-state defendants and the kind of gamesmanship that the
“properly joined and served” restriction was
intended to prevent. See, e.g., Fiskus,
2014 WL 4953610, at *2; In re Intralinks Holdings,
2013 WL 929836, at *3. This result is consistent with the
state of the law in the Second Circuit, which
“construe[s] the removal statute narrowly, resolving
any doubts against removeability.” Purdue Pharma
L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013).