Peterkin v. Federal Express Freight Corporation et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS -- Finding no clear error of law or fact, I adopt the R&R 19 in its entirety. Plaintiff's motion to remand 14 is denied. ORDER ATTACHED. Ordered by Judge Eric R. Komitee on 10/4/2021. (Guy, Alicia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
STEVEN A. PETERKIN,
-againstFEDEX FREIGHT, INC., FEDEX FREIGHT
CORPORATION, and KEVIN ROIG,
ERIC KOMITEE, United States District Judge:
Plaintiff Steven Peterkin sued Defendants Kevin Roig
and FedEx Freight, Inc. (“FedEx”) 1 in Kings County Supreme Court
for damages arising from a car accident.
Defendants removed the
case to federal court; Plaintiff now moves for remand on the
ground that the removal was untimely.
In a Report and
Recommendation, Magistrate Judge Cho recommends that I deny the
Neither party filed objections to the R&R.
the reasons explained below, I adopt the R&R in its entirety.
Standard of Review
Neither party objected to the R&R and the time for
doing so has passed.
standard of review.
Accordingly, I apply a “clear error”
See Advisory Comm. Notes to Fed. R. Civ. P.
Plaintiff actually named two corporations in the caption: Fedex
Freight, Inc. and Fedex Freight Corp. Defendants state that the “Corp.”
defendant was sued improperly. The R&R advises that the “Court need not
address” this issue for purposes of the instant motion, and I concur.
72(b); accord State Farm Mut. Auto. Ins. Co. v. Grafman, 968 F.
Supp. 2d 480, 481 (E.D.N.Y. 2013).
Clear error is present only
when, after reviewing the record as a whole, the court is “left
with the definite and firm conviction that a mistake has been
United States v. Bershchansky, 788 F.3d 102, 110
(2d Cir. 2015) (citation omitted).
In applying this standard, courts in this Circuit
consider whether the R&R commits clear error of either fact or
See, e.g., Alfonso v. Mantuscello, No. 16-CV-9399, 2017 WL
2438029, at *1 (S.D.N.Y. June 5, 2017) (reviewing R&R filed
without objection for “clear error of law”); 1077 Madison St.,
LLC v. Smith, No. 13-CV-7182, 2015 WL 5793427, at *5 (E.D.N.Y.
Sept. 30, 2015) (same).
Legal Standard Under 28 U.S.C. § 1446
Under 28 U.S.C. § 1446(b)(1), a removing defendant
must file the 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, 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 shorter.
The Supreme Court has held that the making of “formal
service” is required to start the thirty-day clock; “mere
receipt of the complaint” is not, by itself, enough.
Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347
(1999); see also Kim v. Bonin, No. 04-CV-4461, 2005 WL 1105245,
at *2 (E.D.N.Y. May 10, 2005) (holding that “proper service is a
prerequisite to the commencement” of the thirty-day clock)
As the R&R explains, the question of whether
Defendants’ removal was timely turns on when Murphy’s service
requirement was satisfied.
Service in this case was governed by
New York’s Vehicle and Traffic Law (“VTL”) § 253.
provision requires a plaintiff to employ certain methods of
service (e.g., personal delivery, various methods of mailing)
and also to file proof of service in the form of an “affidavit
Plaintiff contends he effectuated proper service by
serving the New York Secretary of State with the summons and
complaint, and then mailing the documents to Roig’s last known
address — an approved method under Section 253.
He argues that
service was complete, and the thirty-day period began to run, no
later than August 18 (when Roig received the mailing).
dates refer to 2020.)
Defendants, in contrast, argue that
Plaintiff never properly completed service here, because service
under Section 253 is complete only when the affidavit of
compliance is filed (which Plaintiff never did).
according to the Defendants, the clock only started running on
September 10, when the Defendants agreed to waive proper
If Plaintiff is correct, removal was untimely; if
Defendants are correct, the case was properly removed.
The R&R adopted Defendants’ position and identified
September 10 as the start of the thirty-day clock.
this conclusion, Judge Cho noted that district courts have
rendered opinions supporting both parties’ positions.
In Rodriguez v. Smith, No. 16-CV-0107, 2016 WL 4249832
(E.D.N.Y. 2016), for example, the defendants claimed that their
removal was timely, contending — like Defendants here — that
service of process had never been completed “because plaintiff
failed to file the return receipts or other proof of delivery”
under VTL Section 253.
Id. at *2.
Thus, they argued, the
thirty-day clock had never started, let alone expired.
Mann rejected this argument:
Here, plaintiff's summons and complaint were
personally served upon defendant Smith’s statutory
agent, the Secretary of State in Albany, following
which the documents were sent by certified mail with a
request for return receipt to Smith's last known
address. The alleged failure to file the return
receipts with the Kings County Clerk's office does
not, without more, render service incomplete as a
matter of federal law nor delay the commencement of
the 30-day removal period.
Id. at *3.
The Rodriguez opinion cited Stan Winston Creatures,
Inc. v. Toys “R” Us, Inc., 314 F. Supp. 2d 177 (S.D.N.Y. 2003),
where the district court rejected the argument that service had
not been perfected under New York state law at the time of
removal: “Federal court jurisdiction is not dependent on the
technicality of New York state procedure requiring ten days
after filing proof of service for service to be deemed
Id. at 181 (cleaned up).
The results reached by
these courts do seem consistent with Section 1446’s emphasis on
the date of “receipt by the defendant” of the pleadings (so long
as formal service has occurred, per Murphy), rather than the
perfection of service.
But several courts have gone the other way.
the court held that the removal clock started only when the
plaintiff filed the affidavit of service under VTL Section 253,
rather than when the plaintiff mailed the summons and complaint
and served the Secretary of State.
2005 WL 1105245, at *2.
Another district court reached a similar conclusion in Stop &
Shop Supermarket Co. LLC v. Goldsmith, holding that the removal
clock never started because the plaintiff never filed proof of
service after mailing the summons and complaint.
3052, 2011 WL 1236121, at *5-*6 (S.D.N.Y. Mar. 31, 2011).
the process, the Stop & Shop court noted the split: “The law is
unsettled as to whether federal jurisdiction is affected by New
York’s requirement of that proof of service be filed, and ten
days pass, before service is ‘complete.’”
Id. at 3. 2
Given this split, and the fact that the Second
Circuit has not spoken to the issue, I need not delve too deeply
into the merits. 3
I conclude that the R&R is not the product of
“clear error,” and accordingly adopt its conclusion.
Li Ping Fu v. Pop Art Int’l, Inc., No. 10-CV-8562, 2011 WL
6092309, at *1 (S.D.N.Y. Dec. 7, 2011) (R&R’s conclusion was not
the product of clear error, where district courts were split on
the legal question at issue); see also Bowie v. Woodruff, No.
9:18-CV-0266, 2019 WL 5445519, at *1 (N.D.N.Y. Oct. 23, 2019)
(“[C]onsidering the intra-Circuit split on this issue, the Court
cannot say that the magistrate judge’s determination here rises
to the level of clear error.”).
Stop & Shop and Stan Winston Creatures both dealt with service under
Section 308(2) of New York’s Civil Practice Law and Rules (“CPLR”), which
provides that service is “complete” ten days after the filing of “proof of
service” by an authorized method. But the point is the same under the CPLR
and the VTL: courts are divided on whether compliance with New York’s
“technical” proof-of-service requirements is necessary to trigger the thirtyday removal clock under Section 1446(b)(1). Compare Stan Winston Creatures,
Inc., 314 F. Supp. at 181 (asserting that “[f]ederal court jurisdiction is
not dependent on the technicality of New York state procedure” concerning
proof of service) with Stop & Shop, 2011 WL 1236121, at *6 (“[T]he proof of
service requirement is no mere technicality but rather an assurance that the
other requirements of [CPLR Section 308(2)], delivery and mailing, have been
There is no question that federal diversity jurisdiction exists here.
The motion to remand is based solely on whether Defendants complied with the
statutory requirements for removal. Because this question does not implicate
the Court’s subject-matter jurisdiction, I have no occasion to review the
motion anew on that basis either. See Agyin v. Razmzan, 986 F. 3d 168, 182
(2d Cir. 2021) (“The thirty-day time limitation is merely a formal and modal
requirement and is not jurisdictional.” (cleaned up)).
Finding no clear error of law or fact, I adopt the R&R
in its entirety.
Plaintiff’s motion to remand is denied.
__/s/ Eric Komitee__________
United States District Judge
October 4, 2021
Brooklyn, New York
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