Scully v. Chase Bank USA, National Association et al
MEMORANDUM & ORDER: Plaintiff's 7 Motion to Remand is DENIED. Defendants are directed to answer or otherwise move within fourteen (14) days of the entry of this Memorandum and Order. (See Feb. 1, 2016, Order.) Moreover, should Defendants move to dismiss the Complaint, they are reminded to follow the courts Individual Rules and first request a pre-motion conference. So Ordered by Judge Nicholas G. Garaufis on 5/16/2016. (c/m to pro se) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
16-CV-325 (NGG) (RML)
CHASE BANK USA, NA aka
JP MORGAN CHASE,
CHASE BANK, CHASE and
U.S. BANK NATIONAL
NICHOLAS G. GARAUFIS, United States District Judge.
Prose Plaintiff Winston Scully initiated this action in the Supreme Court of the State of
New York. Defendants Chase Bank USA, National Association ("Chase Bank"), JPMorgan
Chase Bank, National Association ("JPMCB"), and U.S. Bank National Association ("U.S.
Bank") (collectively "Defendants")' removed the case to this court based on diversity of
citizenship. Plaintiff now seeks to remand the case back to state court, arguing that Defendants'
Notice of Removal was untimely and that the parties are not diverse. For the reasons discussed
below, the court DENIES Plaintiffs Motion to Remand.
court believes that Plaintiff intended to sue two parties: "Chase Bank" and "US Bank". This is consistent with
Plaintiffs' attempted service and Plaintiffs' claim that he did not intend to sue JPMorgan Chase. On this reading, JP
Morgan Chase, Chase Bank, and Chase are simply alternative names for Chase Bank.
Out of an abundance of caution, Defendants included "JPMorgan Chase Bank" as if Plaintiff intended to include it
as a separate Defendant in the Complaint.
Nonetheless, the court's removal analysis is the same regardless of whether JPMorgan Chase Bank is included as a
On October 29, 2015, Plaintiff filed a complaint against Defendants in the Supreme Court
of the State of New York, Queens County, seeking the return of an unendorsed promissory note,
damages for Defendants' alleged conspiracy to fabricate and file a false instrument, and damages
for Defendants' allegedly false and improper credit reporting. (Comp!. (Not. of Removal
(Dkt. 1), Ex. A (Dkt. 1-1)) if 10.) On January 21, 2016, Defendants filed a Notice of Removal.
(Not. of Removal.) Plaintiff filed a motion to remand on January 26, 2016. (Mot. to Remand
(Dkt. 7).) On February 29, 2016, Defendants filed their opposition to Plaintiff's Motion to
Remand. (Defs.' Mem. of Law in Opp'n to Pl.'s Mot. to Remand ("Defs.' Opp'n") (Dkt. 9).)
On March 18, 2016, Plaintiff filed a reply. (Pl. 's Reply to Defs.' Opp'n ("Pl.'s Reply")
An action generally is removable if a federal court would have had original jurisdiction
over the action had it been filed in federal court. 28 U.S.C. § 144l(a). Thus, cases where a
federal court would have had diversity jurisdiction under 28 U.S.C. § 1332, generally are
removable. Under § 1332, federal courts have jurisdiction over civil actions between citizens of
different states where the "matter in controversy exceeds the sum or value of$75,000, exclusive
of interest and costs." 28 U.S.C. § 1332.
To remove an action from state court to federal court, a defendant must file a notice of
removal "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." 28 U.S.C. § 1446(b)(l). However, in Murphy Brothers v. Minchetti Pipe
Stringing, 526 U.S. 344, 347 (1999), the Supreme Court held that "[a]n individual or entity
named as a defendant is not obliged to engage in litigation unless notified of the action, and
brought under a court's authority, by formal process." Indeed, "the commencement of the
removal period could only be triggered by formal service of process, regardless of whether the
statutory phrase 'or otherwise' hints at some other proper means of receipt of the initial
pleading." Whitaker v. Am. Telecasting, Inc., 261F.3d196, 202 (2d Cir. 2001).
Service of Process in New York
New York law allows for service of process by first-class mail on out-of-state defendants,
with service of process complete on the date a signed acknowledgement of receipt is mailed or
delivered to the sender. See N.Y. C.P.L.R. ("NYCPLR") § 312-a. The statute provides in
relevant part that:
As an alternative to the methods of personal service authorized by
section 307, 308, 310, 311 or 312 of this article, a summons and
complaint, or summons and notice, or notice of petition and
petition may be served by the plaintiff or any other person by
mailing to the person or entity to be served, by first class mail,
postage prepaid, a copy of the summons and complaint, or
summons and notice or notice of petition and petition, together
with two copies of a statement of service by mail and
acknowledgement of receipt in the form set forth in subdivision (d)
of this section, with a return envelope, postage prepaid, addressed
to the sender.
N.Y. C.P.L.R. § 312-a.
New York courts have held that service of process that does not comply with the
authorized statutory methods is deficient even if the defendant learns that the action is pending.
See, e.g., Macchia v. Russo, 67 N.Y.2d 592, 595. (N.Y. 1986) (per curium) (holding that
"[n]otice received by means other than those authorized by statute does not bring a defendant
within the jurisdiction of the court"); Buggs v. Ehmschwender, 968 F.2d 1544, 1548
(2d Cir. 1992) (finding that "[a]ctual notice of the lawsuit alone will not sustain the service or
subject a person to the court's jurisdiction when there has not been compliance with the
prescribed conditions of service" (internal quotation marks and citation omitted)).
Timeliness of Defendants' Removal
Plaintiff alleges that he served Chase Bank on November 2, 2015, by sending a copy of
the Summons and Complaint through regular and certified mail to 270 Park Avenue, New York,
NY 10017. (Mot. to Remand (Dkt. 7) at 77.) Plaintiff further alleges that he served U.S. Bank
on November 2, 2015, by sending a copy of the Summons and Complaint through regular and
certified mail to 425 Walnut Street, Cincinnati, Ohio 45202. 2 CM,) Tracking information from
the USPS website that shows that the documents were delivered to Chase Bank on
November 6, 2015, and to U.S. Bank on November 9, 2015. (Id. at 81) Since Defendants did
not file the Notice of Removal until January 21, 2016, Plaintiff alleges that the 30-day limit to
file for removal under 28 U.S.C. §1446 had passed. Mat 5.) Defendants argue that removal
Both parties seem to assume that only New York service rules govern this case. However, Federal Rule of Civil
Procedure 4 provides that service is properly effectuated if it accords with "state law for serving a summons in an
action brought in courts of general jurisdiction in the state where the district court is located or where service is
made." Fed. R. Civ. P. 4(e). Thus, the court also must consider whether US Bank was properly served in Ohio. It
Generally, service by mail in Ohio can only be effected by the clerk of court. See Ohio Civ. R. 4.1; Price v. Price,
No. 84-CA-38, 1985 WL 7633, at *2 (Ohio Ct. App. Feb. 4, 1985) ("Civ. R. 4.1 does not provide for a method of
service by certified mail which is mailed by an attorney for a party."); see also Fuller v. Fuller, No. 99-CA-04, 2000
WL 807224, at *5 (Ohio Ct. App. June 14, 2000) ("However, the purpose ofCiv. R. 4.1 is to establish service, or
lack thereof, in the record of the case. Hence, the clerk, a neutral official, must mail the copy of the motion to the
Some federal courts have interpreted Ohio law to allow an attorney, in addition to the clerk of court, to effectuate
mail service. See Piercey v. Miami Valley Ready-Mixed Pension Plan, 110 F.R.D. 294, 296 (S.D. Ohio 1986).
Even if this were Ohio law, and it does not appear to have been adopted by the Ohio courts, it would not save
Plaintiffs service here because Piercey is limited to service by attorneys. Id. ("This Court finds that an attorney
may undertake the clerk's function in certified mail service under the Ohio rules without undermining the
probability that this method of service will effectuate notice." (emphasis added)).
Thus, Plaintiff did not properly serve US Bank in Ohio.
was timely because Plaintiff never properly served Defendants, and, therefore, the 30-day limit
for Defendants to file for removal never began to run. (Defs.' Opp'n at 3.)
Under New York law, Plaintiffs service of process on Defendants was defective because,
contrary to NYCPLR § 312-a, he failed to serve a statement of service by mail and an
acknowledgment of receipt. Indeed, New York courts consistently have held that service of
process is deficient or defective when a plaintiff does not include copies of a statement of service
and an acknowledgment ofreceipt. See, e.g., Mende v. Milestone Tech., Inc., 269
F. Supp. 2d 246, 252 (S.D.N.Y. 2003) (holding that under New York law, plaintiffs service of
process was deficient where plaintiff did not include two copies of a statement of service by mail
and acknowledgment of receipt with a return envelope, postage prepaid, addressed to the sender
as required by NYCPLR § 312-a); Demarco v. City ofNew York, No. 08-CV-3055 (RRM)
(LB), 2010 WL 889266, at *2 (E.D.N.Y. Mar. 10, 2010) (finding that neither Fed. R. Civ. P. 4(d)
nor NYCPLR § 312-a permits service merely by mailing a defendant a copy of the summons and
complaint); Weaver v. New York, 7 F. Supp. 2d 234, 236 (W.D.N.Y. 1998) (holding that merely
mailing a summons and complaint does not constitute service under NYCPLR § 312-a and that
service by mail is only effective when used in conjunction with a statement of service by mail
and acknowledgment of receipt); Jiggetts v. MTA Metro-N. R.R., 993 N.Y.S.2d 699, 700
(App. Div. 2014) (finding that plaintiffs mailing of summons and complaint to corporate
defendant did not properly effectuate personal service by mail because he failed to include two
copies of a statement of service by mail and an acknowledgement of receipt).
As stated in Plaintiffs Motion to Remand, he only sent copies of the Summons and
Complaint to Chase Bank and U.S. Bank. (Mot. to Remand at 4.) Plaintiff did not send two
copies of the statement of service and acknowledgement of receipt as required by
NYCPLR § 312-a. Thus, Plaintiff did not serve Defendants in accordance with New York law.
Therefore, Defendants' 30-day limit to file for removal has not begun to run and Defendants'
Notice of Removal was filed timely.
Having held that Defendants timely filed the Notice of Removal, the court now considers
whether it has original jurisdiction over this action. Defendants invoke this court's diversity
jurisdiction pursuant to 28 U.S.C. § 1332. Diversity jurisdiction is present where there is a claim
between parties of diverse citizenship that exceeds the required jurisdictional amount, currently
set at $75,000. 28 U.S.C. § 1332(a).
Plaintiff resides in New York. (Comp!. ii 1.) Without information on whether Plaintiff is
domiciled elsewhere, he is considered a citizen of New York for diversity purposes. See
Orthopedic Spine Care of Long Island. P.C. v. Ingardia, No. 09-CV-2757 (JS) (ETB), 2011
WL 3841439, at *2 (E.D.N.Y. Aug. 25, 2011) (holding that an individual's residence at the time
a lawsuit is commenced provides prima facie evidence of his domicile); Willis v. Westin Hotel
Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986) (same).
The citizenship of national banks is defined in 28 U.S.C. § 1348, which provides that
"national banking associations shall, for the purposes of all other actions by or against them, be
deemed citizens of the States in which they are respectively located." In Wachovia Bank. N.A.
v. Schmidt, the Supreme Court held that for§ 1348 purposes a national bank is a citizen of the
State in which its main office, as set forth in its articles of association, is
located. 546 U.S. 303, 307 (2006); see also Excelsior Funds. Inc. v. JPMorgan Chase Bank.
N.A., 470 F. Supp. 2d 312 (S.D.N.Y. 2006).
Each Defendant is a national bank. (Not. of Removal '11'1114-16.) Chase Bank has
designated Wilmington, Delaware, as the location of its main office in its articles of association
and therefore, is a citizen of Delaware for diversity purposes.
'1f 14.) JPMCB has designated
Colwnbia, Ohio, as the location of its main office in its articles of association and therefore, is a
citizen Ohio for diversity purposes.
M '1115.) U.S. Bank has designated Cincinnati, Ohio, as
the location of its main office in its articles of association and therefore is a citizen of Ohio for
M '1116.) Complete diversity exists in this action because it involves a
lawsuit between Plaintiff, a citizen ofNew York, and Defendants, all of whom are all citizens of
states other than New York.
As to the amount in controversy, Plaintiff seeks to recover $164,917 .80 plus interest
against all Defendants, an additional $1,070,000 per Defendant (Chase and U.S. Bank),
unspecified damages for false and improper credit reporting, and $50 million in punitive
damages. (Comp!. at 3). This totals well over $75,000. Accordingly, the amount in controversy
requirement is satisfied.
Thus, the court properly may maintain original jurisdiction pursuant to 28 U.S.C. § 1332.
Accordingly, removal was proper.3
Plaintiff argues that Defendants' removal should be rejected because it is not supported by an affidavit. (See Pl.'s
Reply at 2.) However, the court is permitted to consider factual allegations made in a notice ofremoval when
assessing removability. See. e.g., Romanov. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010); Gumey's Inn Resort &
Spa Ltd. v. Benjamin, 743 F. Supp. 2d 117, 127 n. 8 (E.D.N.Y. 2010) (noting that Local Rule 81.1 requires parties to
plead the dates of service and the citizenship of the parties in the notice ofremoval). As explained above,
Defendants' Notice of Removal contains ample factual allegations to establish diversity jurisdiction.
For the reasons set forth above, Plaintiffs Motion to Remand is DENIED. Defendants
are directed to answer or otherwise move within fourteen (14) days of the entry of this
Memorandum and Order. (See Feb. 1, 2016, Order.) Moreover, should Defendants move to
dismiss the Complaint, they are reminded to follow the courts Individual Rules and first request a
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFI~
United States District Judge
Dated: Brooklyn, New Yark
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