McFarlane v. Iron Mountain Incorporated et al
MEMORANDUM OPINION AND ORDER......On May 4, the defendants filed a notice of removal. On May 16, the plaintiff filed a motion to remand the case to the Bronx County Supreme Court for failure to timely remove. For the reasons set forth below, the plaintiffs motion to remand is denied..... (Signed by Judge Denise L. Cote on 6/22/2017) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IRON MOUNTAIN INCORPORATED, RANDY
CREGO, and STUART MEYER
DENISE COTE, District Judge:
The plaintiff filed this lawsuit in the Bronx County
Supreme Court on February 10, 2017.
On February 14, the
plaintiff’s process server served a copy of the summons and
complaint on an individual named “Rem” at defendant Iron
Mountain’s facility in Hicksville, New York.
affidavits of the plaintiff’s process server describe Rem as a
“male of African ancestry” and “having a Caribbean accent and
being from Guyana, South America.”
According to the affidavits,
Rem advised the process server that he was “authorized to accept
legal papers” on behalf of the corporate defendant Iron
Mountain, as well as the individual defendants Randy Crego
(“Crego”) and Stuart Meyer (“Meyer”).1
The affidavits further aver that the process server mailed a
true and exact copy of the summons and complaint in a prepaid
post envelope marked “Personal & Confidential” to Crego and to
Meyer at the Hicksville facility.
In their notice of removal, the defendants claim that the
only employee at the Hicksville facility whose name resembles
“Rem” is Mohanlall Surujpaul, who goes by “Ram.”
Ram is a
Record Center Specialist at the Hicksville facility who is paid
On May 4, the defendants filed a notice of removal.
16, the plaintiff filed a motion to remand the case to the Bronx
County Supreme Court for failure to timely remove.
reasons set forth below, the plaintiff’s motion to remand is
Pursuant to 28 U.S.C. § 1446(b)(1), a “notice of removal of
a civil action or proceeding shall be filed within 30 days after
the receipt by the defendant, through service or otherwise, of a
copy of the initial pleading.”
If defendants are served at
different times, however, and “a later-served defendant files a
notice of removal, any earlier-served defendant may consent to
the removal even though that earlier-served defendant did not
previously initiate or consent to removal.”
§ 1446(b)(2)(C); see also Pietrangelo v. Alvas Corp., 686 F.3d
62, 64, 64 n.3 (2d Cir. 2012) (noting how the 2011 amendment of
§ 1446 codified the later-served rule).
Finally, pursuant to 28
U.S.C. § 1447, “[a] motion to remand the case on the basis of
any defect other than lack of subject matter jurisdiction must
be made within 30 days after the filing of the notice of removal
under section 1446(a).”2
Here, the parties dispute whether the defendants’ notice of
removal was timely under 28 U.S.C. § 1446(b)(1).
argue that the thirty day removal period has not yet commenced
since none of the defendants has been properly served.
plaintiff, by contrast, asserts that it is the “receipt of
notice of the pendency of the lawsuit” -- not service of process
-- that triggers the thirty-day removal period.
Formal service of process, not receipt of notice, triggers
the thirty-day removal period under 28 U.S.C. § 1446(b)(1).
In Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc.,
526 U.S. 344 (1999), the Supreme Court held that a named
defendant’s time to remove is triggered by service of the
complaint, not by “mere receipt of the complaint unattended by
any formal service.”
Id. at 348.
The Court declined to
interpret the phrase “receipt . . . or otherwise” in 28 U.S.C. §
1446(b)(1) to include any other means of service besides formal
service of process.
Id. at 350-56.
The Second Circuit has
confirmed that “the commencement of the removal period [can]
only be triggered by formal service of process, regardless of
The parties do not dispute the timeliness of the plaintiff’s
motion to remand.
whether the statutory phrase ‘or otherwise’ hints at some other
proper means of receipt of the initial pleading.”
Am. Telecasting, Inc., 261 F.3d 196, 202 (2d Cir. 2001).
Accordingly, it is formal service of process -- not, as the
plaintiff contends, notice of the pendency of the lawsuit -that triggers the thirty day removal period.
Defendant Meyer was not properly served; thus, the
defendants’ notice of removal is timely under 28 U.S.C.
New York law permits personal service on a natural person
“by delivering the summons within the state to a person of
suitable age and discretion at the actual place of business” of
the person to be served and, within twenty days thereafter,
mailing a copy of the summons to the actual place of business
“in an envelope bearing the legend ‘personal and confidential.’”
N.Y. C.P.L.R. § 308(2).
“Actual place of business” includes
“any location that the defendant, through regular solicitation
or advertisement, has held out as its place of business.”
C.P.L.R. § 308(6).
In order for a place to be a defendant’s
“actual place of business,” the defendant “must be physically
present with regularity and must be shown to regularly transact
business at that place.”
Bridgehampton Nat’l Bank v. Watermill
Heights Assocs., 596 N.Y.S.2d 321, 324 (Sup. Ct. 1993) (citation
It follows that “service is invalid if the delivery
is made at a place where the defendant maintained his place of
business in the past, but does not do so at the time of
Glasser v. Keller, 567 N.Y.S.2d 981, 982 (Sup. Ct.
It is unnecessary to address the defendants’ evidence that
none of the defendants has yet been served properly.
beyond dispute that Meyer was not.
Meyer has not worked for
Iron Mountain since this lawsuit commenced, and was never
physically present with regularity or transacting any business
from the Hicksville facility.
Thus, the defendants’ notice of
removal is timely under 28 U.S.C. § 1446(b)(2)(C) because Meyer,
a later-served defendant, has not been properly served.
Accordingly, it is hereby
ORDERED that the plaintiff’s motion to remand is denied.
New York, New York
June 22, 2017
United States District Judge
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