Maione et al v. New York City et al
MEMORANDUM & ORDER: For the reasons set forth in the attached, Defendant City of New York's motion to remand this action to State court [Dkt. 20] is granted. Ordered by Judge Pamela K. Chen on 10/28/2015. (Pelaez, Jenny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SCOTT MAIONE and TASHA OSTLER,
on behalf of their infant children J.M., MM.,
MEMORANDUM & ORDER
15-CV-601 (PKC) (SMG)
− against –
THE CITY OF NEW YORK, STERLING
METS L.P., and QUEENS BALLPARK
PAMELA K. CHEN, United States District Judge:
Before the Court is Defendant City of New York’s motion to remand this case to State
court. (Dkt. 20.) The Court grants the motion in full for the reasons set forth below.
This case arises out of an incident that occurred during a Mets baseball game at Citi Field
in Queens, New York on August 20, 2013. (See Dkt. 21 Ex. A (“Compl.”) ¶¶ 5–41.) On
November 14, 2014, Plaintiffs Scott Maione and Tasha Ostler filed suit, on behalf of themselves
and their infant children J.M., M.M., and S.M., against Defendant City of New York (the “City”)
and Defendants Sterling Mets, L.P. (“Mets”) and Queens Ballpark Company, LLC (collectively
the “Mets Defendants”) in the Supreme Court of the State of New York, County of Queens
(“Queens County Supreme Court”). (Id. at ¶¶ 3–4.) 1 Plaintiffs assert an array of claims,
Plaintiffs commenced suit pro se, but are now represented by Louis J. Maione, Esq. (See Dkt.
9 (Notice of Appearance by Louis J. Maione on behalf of all Plaintiffs).)
including, inter alia, false imprisonment, assault and battery, infliction of pain and suffering,
negligent supervision, and violation of civil and disability rights. (Id. at ¶¶ 42–72.)
On February 6, 2015, the Mets Defendants filed a Notice of Removal with this Court.
(See Dkts. 1 (“Notice of Removal”); 21 (Declaration of Ashley R. Garman, Esq., in Support of
Motion to Remand (“Garman Decl.”)) ¶ 7.) On September 1, 2015, the City moved to remand
this action to Queens County Supreme Court, asserting that it had not consented to the removal
of this action to federal court. (See Dkts. 20 (“Notice of Motion to Remand”); 22 (“City
Under 28 U.S.C. § 1441(a), “any 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 or the
defendants.” This provision is construed narrowly and in favor of remand out of “[d]ue regard
for the rightful independence of state governments.” Gribler v. Weisblat, 07 CV 11436, 2008
WL 563469, at *1 (S.D.N.Y. Feb. 25, 2008) (quoting Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100, 109 (1941)); see Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir. 1991)
(“In light of the congressional intent to restrict federal court jurisdiction, as well as the
importance of preserving the independence of state governments, federal courts construe the
removal statute narrowly, resolving any doubts against removability.”) “‘The burden of proving
federal removal jurisdiction,’ therefore, ‘is on the party seeking to preserve removal, not the
party moving for remand.’” Gribler, 2008 WL 563469, at *1 (quoting Pan Atlantic Grp., Inc. v.
Republic Ins. Co., 878 F. Supp. 630, 638 (S.D.N.Y. 1995)).
Plaintiffs take no position on the City’s motion to remand. (See Dkt. 26.)
Section 1446(b) of Title 28 of the United States Code sets forth the requirements for
removal of a State court action, including the requirement that when, as here, removal of a civil
action is based solely on Section 1441(a), i.e., original jurisdiction in federal court, “all
defendants who have been properly joined and served must join in or consent to the removal of
the action.” 28 U.S.C. § 1446(b)(2) (emphasis added). This “rule of unanimity” is wellestablished. See Heller v. N.Y.C. Health & Hosps. Corp., 09 CV 6193, 2010 WL 481336, at *2
(S.D.N.Y. Feb. 1, 2010) (requiring “all defendants to manifest their consent to removal”); Ell v.
S.E.T. Landscape Design, Inc., 34 F. Supp. 2d 188, 193–94 (S.D.N.Y. 1999) (collecting cases
requiring unanimous consent); see also Novick v. Bankers Life Ins. Co., 410 F. Supp. 2d 98, 100
(E.D.N.Y.) (“[A]ll [defendants] over whom the state court acquired jurisdiction must join in the
removal petition for removal to be proper.”) (quoting Ell, 34 F. Supp. 2d at 193), vacated on
other grounds, 450 F. Supp. 2d. 196 (E.D.N.Y. 2006). Furthermore, “mandating written consent
to remove ‘is consistent with the notion that filing requirements are strictly construed and
enforced in favor of remand.’” Codapro Corp. v. Wilson, 997 F. Supp. 322, 326 (E.D.N.Y.
1998) (citation omitted).
Thus, “[a]bsent consent of all parties, ‘the removal petition is
defective[,] and the usual course of conduct is for the federal court to remand the action back to
state court.’” Snakepit Auto., Inc. v. Superperformance Int’l, LLC, 489 F. Supp. 2d 196, 201
(E.D.N.Y. 2007) (quoting Newkirk v. Clinomics Biosciences, Inc., 06 CV 0553, 2006 WL
2355854, at *3 (N.D.N.Y. Aug. 15, 2006)).
Lack of Unanimous Consent to Remove this Case to Federal Court
The City seeks to remand this case to State court, asserting that it never consented to
removal of this action to federal court. (City Mem. at 5.) 3 Indeed, the Notice of Removal filed
by the Mets Defendants makes no mention of the City beyond the caption, and gives no
indication of the City’s consent to removal. (See Dkt. 22 Ex. D (“Revised Notice of Removal”).)
See Codapro, 997 F. Supp. at 325 (noting “most courts have required some form of unambiguous
written evidence of consent to the court”) (citation omitted). 4 Thus, the Mets Defendants’
removal petition is defective because it fails to comply with the rule of unanimity. See Snakepit,
489 F. Supp. 2d at 201.
“The only exceptions to [the] rule [of unanimity] are where ‘(i) the non-joining
defendants have not been served with service of process at the time the removal petition is filed;
(ii) the non-joining defendants are nominal parties; or (iii) the removed claim is a separate and
independent cause of action as defined by 28 U.S.C. § 1441(c).’” Gribler, 2008 WL 563469, at
*1 n.4 (citations omitted) (emphasis added).
The second and third exceptions are clearly
inapplicable in the instant case. With respect to the exception for lack of service of process, the
City was served by Plaintiffs on or about January 9, 2015 (see City Mem. at 2), well before the
Notice of Removal was filed on February 6, 2015. Moreover, a removing defendant’s lack of
The other requirements for removal under 28 U.S.C. § 1446 are not at issue. For example, the
City does not dispute that the Mets Defendants have complied with the requirement in 28 U.S.C.
§ 1446(b) that the notice of removal “be filed within thirty 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 . . . .” (See Notice of Removal; City
Mem. at 3–4.)
Although the Mets Defendants contend – and the City disputes – that counsel for the Mets
Defendants attempted, without success, to speak to the City’s attorneys about whether the City
would oppose removal (see Dkt. 24 ¶ 6; Garman Decl. ¶ 10), it is irrelevant whether any such
attempts were made and whether the parties actually discussed the removal issue. The only
relevant fact, which is undisputed, is that the City did not join the removal petition and continues
to challenge removal of this matter.
knowledge as to whether a non-consenting co-defendant was served does not excuse compliance
from the unanimity rule. Metro. Transp. Auth. v. United States Fid. & Guarantee Co., 14 CV
9059, 2015 WL 1730067, at *7 (S.D.N.Y. Apr. 14, 2015) (citation omitted).
In analyzing the first exception to the unanimity rule, courts focus on whether there was
proper service of process because that is when the State court obtains jurisdiction over a
defendant. See, e.g., James v. Gardner, 04 CV 1380, 2004 WL 2624004, at *3 (E.D.N.Y. Nov.
10, 2004) (defective service means that no court acquired jurisdiction over co-defendant, and
therefore consent was not required); Newkirk, 2006 WL 2355854, at *3 (“a defendant not subject
to state court jurisdiction through proper service of process at the time of removal is excused
from the unanimity requirement”).
This approach is consistent with the Supreme Court’s
instruction that district courts give due regard to State court jurisdiction when construing
removal statutes. See Shamrock, 313 U.S. at 109 (“Due regard for the rightful independence of
state governments, which should actuate federal courts, requires that they scrupulously confine
their own jurisdiction to the precise limits which the statute has defined.”) (quoting Healy v.
Ratta, 292 U.S. 263, 270 (1934)); see generally Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 350 (1999) (observing that “service of process . . . is fundamental to any
procedural imposition on a named defendant. . . . In the absence of service of process (or waiver
by the defendant), a court ordinarily may not exercise power over a party the complaint names as
defendant” and holding that the time for removal commences when service is completed and
jurisdiction over a defendant has been obtained). To the extent that a defendant’s answer is
pertinent to the removal inquiry, it is only with regard to consideration of potential
manifestations of consent. Cf. Gribler, 2008 WL 563469, at *1 (“co-defendant’s answer was not
an unambiguous manifestation of consent to removal”) (citing Unicom Sys., Inc. v. Nat’l Louis
Univ., 262 F.Supp.2d 638 (E.D.Va. 2003); Hicks v. Emery Worldwide, Inc., 254 F. Supp. 2d 968
(S.D. Ohio 2003)).
The Mets Defendants advance a novel objection to the application of the rule of
unanimity in this case, which the Court finds unpersuasive. The Mets Defendants argue that
because the City failed to timely interpose its Answer, 5 it was not a “properly joined” party
under 28 U.S.C. § 1446(b)(2)(A), and thus the City’s consent to removal was not required. (Dkt.
25 (“Opp. Mem.”) at 2–6.) The Court finds no support for this interpretation of the “properly
joined” element of 28 U.S.C. § 1446(b)(2)(A), nor have the Mets Defendants identified
persuasive authority on this point.6
Indeed, the more logical interpretation of the phrase
“properly joined defendant” in Section 1441(b)(2) is, as the Fifth Circuit has found, that it simply
comports with Fed. R. Civ. P. 20(a), namely, a defendant who is properly named or “joined” in
an action. See Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532–33 (5th Cir. 2006);
Fed. R. Civ. P. 20(a)(2) (providing, inter alia, that “persons . . . may be joined in an action as
defendants if: (A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law or fact common to all defendants will
arise in the action”).
The Mets Defendants’ contention that the City’s Answer was untimely is based on the City
allegedly having served its Answer on Plaintiffs on February 6, 2015, eight days past the filing
deadline for the City’s Answer, and not serving its Answer on the Mets Defendants at all. (Opp.
Mem. at 3–4; Garman Decl. ¶¶ 5, 6; Dkt. 21 Ex. C.)
The Mets Defendants cite to cases that do not illuminate the meaning of “properly joined,” but
rather only tangentially relate to the statutory removal procedures. (See Opp. Mem. 4); Murphy
Bros., 526 U.S. at 356 (service of process marks the commencement of 1446(b)’s removal
period); Gribler, 2008 WL 563469, at *1 (co-defendant’s mere filing of a motion to dismiss does
not satisfy the rule of unanimity’s consent requirement); Novick, 410 F. Supp. 2d at 100
(remanding after co-defendant did not file or attempt to file consent to removal).
Thus, the Court rejects the Mets Defendants’ “properly joined” argument, and finds that
the City’s consent to removal is still required by the rule of unanimity. Because the Mets
Defendants did not obtain the City’s consent before removing this matter, and because the City,
which was properly served, never consented to the removal, the Mets Defendants cannot carry
their burden of establishing federal removal jurisdiction.
For the reasons set forth above, the Court grants Defendant City of New York’s motion to
remand this action to State court.
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: October 28, 2015
Brooklyn, New York
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