Abdullah v. Erdner Bros, Inc. et al
Filing
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ORDER granting 14 Motion to Remand to State Court. Signed by Judge Victor A. Bolden on 03/16/2015. (LaPre, E.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
AMER ABDULLAH
Plaintiff,
v.
ERDNER BROS, INC., ET AL.
Defendants.
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CIVIL ACTION NO.:
3:14-cv-01742-VAB
MARCH 16, 2015
RULING ON MOTION TO REMAND
I.
INTRODUCTION
Plaintiff Amer Abdullah (“Plaintiff”) moves to remand this action to state court on
the grounds that Defendant Xtra Lease Inc. (“Xtra Lease”) did not file its Notice of
Removal [ECF No. 1] within 30 days after service of process on its agent and did not
satisfy the “unanimity rule.” (ECF No. 14 at 1-2.) For the reasons stated below,
Plaintiff’s Motion to Remand to State Court [ECF No. 14] is GRANTED.
II.
BACKGROUND
Plaintiff sued Defendants Xtra Lease, Erdner Bros., Inc., Timothy Hasty, and
Allegheny Clarklift, Inc. (collectively, “Defendants”) in the Superior Court of Connecticut,
Judicial District of Middlesex at Middletown to recover damages for personal injuries
that Plaintiff allegedly suffered as a result of a collision between Plaintiff’s automobile
and a tractor trailer owned and operated by Defendants. (ECF No. 1-1.) Plaintiff served
Defendants on October 8, 2014. (ECF No. 1-2.) Plaintiff served Xtra Lease by
delivering process to the office of the Secretary of the State of Connecticut, Xtra
Lease’s agent for service of process in Connecticut. (Id. at 2; ECF No. 16 at 2.)
However, Xtra Lease asserts that it did not “actually receive” the summons and
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complaint until October 24, 2014. (ECF No. 16 at 2; ECF No. 16-1.) On November 20,
2014, forty-three days after Plaintiff served process on the Secretary of State, Xtra
Lease filed a Notice of Removal initiating this action. (ECF No. 1.) Plaintiff timely filed
the instant Motion to Remand to State Court within 30 days after the filing of Xtra
Lease’s Notice of Removal. (ECF No. 1; ECF No. 14.) 28 U.S.C. § 1447(c) (motion to
remand must be made within 30 days after filing of notice of removal).
III.
DISCUSSION
A.
Timeliness of the Notice of Removal
To remove a case to federal court, a notice of removal must be filed within 30
days after “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.” 28 U.S.C. § 1446(b)(1). Each defendant has 30 days after receipt by that
defendant of the initial pleading to file a notice of removal. 28 U.S.C. § 1446(b)(2)(B).
It is undisputed that Xtra Lease filed its Notice of Removal more than 30 days
after its agent, the Secretary of State, was served with process. (ECF No. 1-2 at 2; ECF
No. 1.) Plaintiff argues that this action must therefore be remanded to state court.
(ECF No. 14 at 1-2.) However, a staff attorney for Xtra Lease stated in a sworn affidavit
that Xtra Lease did not actually receive the complaint until 16 days after Plaintiff served
process on the Secretary of State. (See ECF No. 16-1). Xtra Lease filed its Notice of
Removal within 30 days after the date it claims to have actually received the complaint.
(See ECF No. 16 at 1-2; ECF No. 1.) Thus, the issue is whether the 30-day period to
file a notice of removal commenced when Plaintiff served the Secretary of State, or
when Xtra Lease actually received the complaint.
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The Second Circuit has not definitively ruled on this question, but the weight of
authority in this Circuit holds that the 30-day period for filing a notice of removal does
not commence with service upon a statutory agent, such as a secretary of state, but
instead when the defendant actually receives the complaint. E.g., Rowland v.
Giftcertificates.com, Inc., 195 F. Supp. 2d 509, 512-13 (S.D.N.Y. 2002) (30-day period
did not commence when process was served upon secretary of state as defendant’s
statutory agent); Fernandez v. Hale Trailer Brake & Wheel, 332 F. Supp. 2d 621, 62425 (S.D.N.Y. 2004) (same); Medina v. Wal-Mart Stores, Inc., 945 F. Supp. 519, 520-21
(W.D.N.Y. 1996) (same; noting that “‘the heavy weight of authority is to the effect that
the time for removal, in cases in which service is made on a statutory agent, runs from
receipt of the pleading by the defendant rather than the statutory agent.’” (quoting
Cygielman v. Cunard Line Ltd., 890 F. Supp. 305, 307 (S.D.N.Y. 1995))); Auguste v.
Nationwide Mut. Ins. Co., 90 F. Supp. 2d 231, 232 (E.D.N.Y. 2000) (“[S]ervice of
process upon a defendant's statutory agent is not sufficient to trigger the 30-day
removal period.”); Weimer v. City of Johnstown, N.Y., 931 F. Supp. 985, 990 (N.D.N.Y.
1996) (“[T]he thirty-day limit for removal begins when a defendant receives the initial
pleading described in section 1446(b), regardless of whether he was properly served.”).
The Wright & Miller treatise recognizes that “[a]t one time it was not clear
whether service on a statutory agent, such as a Secretary of State (or comparable state
official) . . . was sufficient to commence the time period for removal . . . [but] it now
appears to be settled law that the time for removal begins to run only when the
defendant or someone who is the defendant's agent-in-fact receives the notice via
service.” 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
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3731 (4th ed. 2014). Several rationales have been offered for this rule, including the
removal statute’s provision that the clock starts after receipt by the defendant, “through
service or otherwise,” of the initial pleading, Weimer, 931 F. Supp. at 989 (quoting 28
U.S.C. § 1446(b)(1)) (emphasis in original), the idea that “statutory agents are not true
agents but merely are a medium for transmitting the relevant papers,” Wright & Miller,
supra, § 3731, and the principle that “the defendant's right to a federal forum should not
depend upon the rapidity and accuracy with which the statutory agent informs its
principal of the commencement of litigation against it,” Medina, 945 F. Supp. at 521.
The question has arisen in this district before, and this Court followed the
majority, holding that the 30-day period did not commence against an insurer when
process was served on its statutory agent, the office of the Insurance Commissioner of
Connecticut, but rather when the insurer actually received process five days later.
Londregan v. CUNA Mut. Ins. Soc'y, No. 3:09-CV-1540 (MRK), 2009 WL 4730441, at *3
(D. Conn. Dec. 7, 2009) (“This Court agrees that when service is effectuated upon a
statutory agent (as opposed to the agent for service of process designated by a
defendant), the time for removal under 28 U.S.C. § 1446(b) begins when the defendant
actually receives the summons and complaint.”). The Court will do the same here.
Xtra Lease, as a foreign corporation under Connecticut law, appointed the
Secretary of State as its statutory agent pursuant to Conn. Gen. Stat. § 33-926(b).
Thus, the 30-day removal period did not commence when Plaintiff served the Secretary
of State, but rather when Xtra Lease actually received the complaint. The Court notes
that the 30-day period would have commenced upon service had Xtra Lease designated
an agent-in-fact rather than appointing the Secretary of State pursuant to statute. See
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Recyclers Consulting Grp., Inc. v. IBM-Japan, Ltd., No. 96 CIV. 2137 (JFK), 1997 WL
615014, at *4 (S.D.N.Y. Oct. 3, 1997) (“[A] distinction should be drawn between agents
designated by statute and agents designated and selected by a party to receive
process. The law appears to be settled that service on a statutory agent, such as a
State Highway Commissioner, or here, the State Insurance Commissioner, does not
start the running of the removal statute time limitation period as would service on the
defendant or an agent designated by the defendant.”) (quoting Skidaway Associates,
Ltd. v. Glens Falls Ins. Co., 738 F. Supp. 980, 982 (D.S.C. 1990)); see also Londregan,
2009 WL 4730441, at *3 (D. Conn. Dec. 7, 2009) (“[W]hen service is effectuated upon a
statutory agent (as opposed to the agent for service of process designated by a
defendant), the time for removal under 28 U.S.C. § 1446(b) begins when the defendant
actually receives the summons and complaint.”) (emphasis added).
Xtra Lease’s staff attorney attested by sworn affidavit that Xtra Lease did not
actually receive the complaint until October 24, 2014, and Plaintiff has not contested
that claim. See Fernandez, 332 F. Supp. 2d at 624 (where defendant filed affidavit
attesting that defendant did not receive complaint until 15 days after service upon
secretary of state, and plaintiff did not contest that assertion, court concluded that
plaintiff assented to that assertion). Because Xtra Lease did not actually receive the
complaint until October 24, 2014, its removal on November 20, 2014 was timely.
B.
Consent to Removal: the “Unanimity Rule”
Xtra Lease removed this case pursuant to 28 U.S.C. § 1441(a) based on
diversity of citizenship. (See ECF No. 1 at 1.) When a case is removed pursuant to 28
U.S.C. § 1441(a), “all defendants who have been properly joined and served must join
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in or consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). This is known as
the “unanimity rule.” Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir. 2012).
The “unanimity rule” is strictly enforced in this Circuit. Burr ex rel. Burr v. Toyota
Motor Credit Co., 478 F. Supp. 2d 432, 437 (S.D.N.Y. 2006) (“This rule of unanimity is
strictly interpreted and enforced.”) (internal quotation marks omitted); Edelman v. Page,
535 F. Supp. 2d 290, 292 (D. Conn. 2008) (same; remanding case for failure to satisfy
“unanimity rule” even though “it makes the most sense for this court to adjudicate the
issues” and remand would “constitute[] a waste of the State of Connecticut’s judicial
resources”); Nat'l Waste Associates, LLC v. TD Bank, N.A., No. 3:10-CV-289 (CSH),
2010 WL 1931031, at *3 (D. Conn. May 12, 2010) (noting “well-settled precedent in the
Second Circuit of strictly enforcing the ‘unanimity rule’ in removal cases”); Patrick v.
Porter-Cable Corp., No. 3:10CV131 (MRK), 2010 WL 2574121, at *3 (D. Conn. Apr. 1,
2010) (“Courts have very little discretion—if any—to forgive a failure to comply with the
rule of unanimity.”). Thus, courts “construe the removal statute narrowly, resolving any
doubts against removability.” Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir.
1994) (quoting Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1045-46 (2d Cir.
1991)).
The Second Circuit has “not yet advised what form a consent to removal must
take,” but has stated that defendants “must independently express their consent to
removal.” Pietrangelo, 686 F.3d at 66. District courts within this Circuit, including this
Court, have held that each defendant must file some form of unambiguous written
consent within 30 days after its receipt of the initial pleading. See, e.g., TD Bank, N.A.,
2010 WL 1931031, at *3 (“[T]o join in removal, each defendant must file some form of
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unambiguous written consent within the requisite thirty days.”); Edelman, 535 F. Supp.
2d at 292-93 (“While courts generally do not require all defendants to sign the removal
petition itself, most courts have required some form of unambiguous written evidence of
consent. . . . Failure of any defendant to provide its written consent within the applicable
thirty-day period renders the petition for removal untimely.”) (quoting Toyota Motor
Credit Co., 478 F. Supp. 2d at 437); see also Pietrangelo, 686 F.3d at 66 (observing
that district courts within Second Circuit require defendants to consent to removal within
“the statutory thirty-day period”).
There are three exceptions to the “unanimity rule”: “(1) the non-joining
defendants have not been served with service of process at the time the removal
petition is filed; (2) the non-joining defendants are merely nominal or formal parties; [or]
(3) the removed claim is a separate and independent claim as defined by 28 U.S.C. §
1441(c).” Edelman, 535 F. Supp. 2d at 293 (quoting Snakepit Auto., Inc. v.
Superperformance Int'l, LLC, 489 F. Supp. 2d 196, 201-02 (E.D.N.Y. 2007)) (internal
quotation marks and citations omitted in original) (alteration in original).
Defendants do not contend, nor does the Court find, that any exception applies in
this case. First, the record reflects that Defendants were all properly served on October
8, 2014. (ECF No. 1-2.) Second, the non-joining Defendants in this case are not
nominal or formal parties because (a) Defendant Timothy Hasty is alleged to have
negligently operated the tractor trailer that collided with Plaintiff’s vehicle, causing
Plaintiff injury, (ECF No. 1-1 at 2-3), and (b) Defendants Erdner Bros., Inc. and
Allegheny Clarklift, Inc. are alleged to have caused Plaintiff’s injuries by negligently
permitting the operation of the tractor trailer and failing to perform maintenance and
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inspection on the tractor trailer, (ECF No. 1-1 at 4-5). Third, 28 U.S.C. § 1441(c) no
longer uses the term “separate and independent claim,” but previously provided that
“[w]henever a separate and independent claim or cause of action within the jurisdiction
conferred by section 1331 of this title [i.e., a federal law claim] is joined with one or more
otherwise non-removable claims or causes of action, the entire case may be removed
and the district court may determine all issues therein, or, in its discretion, may remand
all matters in which State law predominates.” 28 U.S.C. § 1441(c), amended by Pub. L.
No. 112-63, § 103(a)(4) (2011). In this case, Xtra Lease seeks removal of all claims on
the basis of diversity of citizenship, and there are no claims arising under federal law in
this action. Thus, section 1441(c) is inapplicable. Having concluded that no exception
to the “unanimity rule” applies, the Court must remand if Defendants did not provide
unambiguous and unanimous written consent to removal within the requisite 30-day
period.
None of Xtra Lease’s co-defendants filed unambiguous written consents to
removal. Defendant Allegheny Clarklift, Inc. has filed nothing in this case, and
Defendants Erdner Bros., Inc. and Timothy Hasty have filed only appearances [ECF
Nos. 11, 12] and an answer [ECF No. 23], which do not contain, or constitute,
unambiguous written consents to removal. See Edelman, 535 F. Supp. 2d at 293
(defendants’ appearances made no mention of whether they consented to removal and
thus did not constitute unambiguous written evidence of consent); Henderson v.
Holmes, 920 F. Supp. 1184, 1187 (D. Kan. 1996) (defendant’s answer did not state that
defendant consented to removal, and court refused to infer consent from mere fact that
defendant filed his answer in federal court); Landman v. Borough of Bristol, 896 F.
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Supp. 406, 409 (E.D. Pa. 1995) (“[A] party's filing of an answer does not satisfy the
unambiguous expression of consent required for proper removal.”); TD Bank, N.A.,
2010 WL 1931031, at *7 (D. Conn. May 12, 2010) (noting that defendant’s answer was
filed after 30-day removal period “and, for that matter, contained no language indicating
consent to removal.”). Accordingly, 28 U.S.C. § 1446(b)(2)(A), or the “unanimity rule,” is
not satisfied and therefore this case must be remanded.
IV.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Remand to State Court [ECF No.
14] is hereby GRANTED. This case shall be remanded immediately to the Superior
Court of Connecticut, Judicial District of Middlesex at Middletown. The Clerk is
instructed to close this file.
SO ORDERED at Bridgeport, Connecticut this sixteenth day of March, 2015.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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