Spillman v. Murphy, et al

Filing 18

DECISION AND ORDER ADOPTING 10 REPORT AND RECOMMENDATION. The plaintiff's 3 MOTION to Remand to State Court is DENIED, and the case is referred back to Judge McCarthy consistent with the referral order. See Docket Item 5. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 9/29/2017. (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
Richard M. Spillman,
Plaintiff,

16-CV-437
Decision and Order

v.
Ryan M. Murphy and
Deborah Murphy,
Defendants.
___________________________________
The plaintiff, Richard Spillman, commenced this action in New York State
Supreme Court, seeking to recover damages for personal injuries resulting from an
automobile accident on September 29, 2013. Docket Item 10 at 2. Ryan Murphy
(“Ryan”), one of the defendants, was first served with process on May 6, 2016. Id.
Based on diversity of citizenship, Ryan filed a notice of removal to this Court on May 31,
2016. Id. Spillman then moved to remand, arguing that Ryan had consented to a prior
notice of removal by his codefendant and mother, Deborah Murphy (“Deborah”). Id.
On July 28, 2016, United States Magistrate Judge Jeremiah J. McCarthy issued
a Report and Recommendation (“R&R”), finding that Spillman’s motion to remand
should be denied. After Spillman objected, this Court heard oral argument on
September 26, 2016. Additional briefing was requested and submitted in October 2016.
Having now considered the R&R, the objections, and the additional briefing, this Court
adopts Judge McCarthy’s R&R and denies the plaintiff’s motion to remand.

BACKGROUND
In August 2015, Spillman served the summons and amended complaint on one
of the two defendants, Deborah. Docket Item 10 at 1. After she was served, Deborah
filed a notice of removal based on diversity of citizenship. Id. Her attempt to remove
her case to federal court, however, was untimely and thus unsuccessful. 15-CV-829
Docket Items 12 and 13.
Ryan, on the other hand, was not served with process until May 6, 2016. Docket
Item 10 at 2. He filed a timely notice of removal twenty-five days later, asserting this
Court’s jurisdiction based on diversity of citizenship. Id. Spillman contests Ryan’s
removal, arguing that because Ryan consented to the initial—and unsuccessful—
removal attempted by Deborah, Ryan’s removal is barred and the case must proceed in
state court.
DISCUSSION AND ANALYSIS
The process of removing a case to federal court from state court is governed by
28 U.S.C. Section 1446. Under that statute, “[t]he notice of removal . . . shall be filed
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 . . . .” 28 U.S.C. § 1446(b)(1).
In interpreting the most perplexing clause of the statute—“or otherwise”—the Supreme
Court has concluded that the language was intended to accommodate varying state
filing procedures, and not to offer an end run around the requirement of formal service.
See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 353 (1999)
(“Nothing . . . hints that Congress . . . intended to dispense with the historic function of

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service of process as the official trigger for responsive action by an individual . . . .”). 1
Therefore, a defendant’s time to remove is triggered by service of process. See id.
That there are multiple named defendants here does not change the trigger. In fact, a
later section of the removal statute makes that explicit: “Each defendant shall have 30
days after receipt by or service on that defendant . . . to file the notice of removal.” 28
U.S.C. § 1446(b)(2)(B).
The Second Circuit has adopted the “later-served rule,” with each defendant’s
thirty-day removal clock independent of that of the first-served defendant. See
Pietrangelo v. Alvas Corp., 686 F.3d 62, 64 (2d Cir. 2012). In other words, a defendant
who is later served is not bound by the thirty-day removal deadline for the defendant
who was initially served. Rather, because the plain text of the statute affords each
defendant thirty days to remove, each defendant has thirty days from the date he, she,
or it is formally served to file a timely notice of removal. See id. at 65. Here, because
Ryan removed within that thirty-day period, his removal is timely.
Citing Ortiz v. City of New York, 2013 WL 2413724 (S.D.N.Y. 2013)—an
unreported case of first impression—Spillman argues that the determinative factor in
this case is Ryan’s express consent to Deborah’s initial removal notice, Docket Item 313 at 5-7. But in Ortiz, the consenting party was represented by counsel who filed an
affidavit stating that his client consented to the removal. Affidavit of Consent to
Removal, Docket Item 1-7 at 1, Ortiz v. City of New York, 2013 WL 2413724 (S.D.N.Y.
2013).

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Indeed, “[i]n the absence of service . . . a court ordinarily may not exercise
power over a party the complaint names as a defendant.” Murphy, 526 U.S. at 350.
3

This case is different. Here, while Deborah’s attorney consented to the
attempted removal on Ryan’s behalf, Ryan was not represented by that attorney when
Deborah tried to remove the case. Indeed, Deborah’s attorney now has sworn that he
did not represent Ryan when the consent was filed. Docket Item 13 at 4-5. The
attorney therefore could not consent on Ryan’s behalf. See Starrett Corp. v. Fifth Ave.
& Twenty-Ninth St. Corp., 1 F. Supp. 868, 876 (S.D.N.Y. 1932). And the fact that the
codefendants are mother and son makes no difference: Each defendant was entitled to
counsel whose allegiance was to his or her client. See United States v. Hernandez,
2014 WL 4510266, at *3 (S.D.N.Y. Sept. 12, 2014).
Spillman also argues that even if Ryan’s removal is timely, Deborah cannot “ride
his coattails to federal court.” Docket Item 3-13 at 9. But “a [first-served] defendant
who fails to timely remove an action may nonetheless consent to timely removal by a
later-served defendant.” Piacente v. State Univ. of New York at Buffalo, 362 F. Supp.
2d 383, 387 (W.D.N.Y. 2004); Fernandez v. Hale Trailer Brake & Wheel, 332 F. Supp.
2d 621, 623 (S.D.N.Y. 2004). And there is no reason grounded in law or logic to apply a
different rule for those who unsuccessfully try to remove.
Deborah was served and made an untimely attempt to remove, but her son Ryan
is not bound by her action regardless of whether he knew about the case or even about
the notice of removal. Knowledge is not a substitute for service, and it is service that
triggers a party’s time to remove. Ryan was served on May 6, 2016, and so his clock

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began to run from that date. He filed a notice of removal twenty-five days after he was
served. His notice is therefore timely under 28 U.S.C. Section 1446(b)(2)(B) and (C). 2
CONCLUSION
For the reasons addressed above and in the R&R, this Court adopts Judge
McCarthy’s recommendation. Docket Item 10. The plaintiff’s motion to remand is
DENIED, and the case is referred back to Judge McCarthy consistent with the referral
order. See Docket Item 5.
SO ORDERED.
Dated:

September 29, 2017
Buffalo, New York

s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
Under 28 U.S.C. Section 1446(c), a case that was not originally removable but
that later becomes removable may not be removed more than one year after
commencement of the action. Although there is some dispute as to the interpretation of
this provision of the statute, the statutory language suggests that it applies only to cases
that were not originally removable. In fact, the circuit courts to have addressed the
issue have reached that very conclusion. See, e.g., Brown v. Tokio Marine & Fire Ins.
Co., 284 F.3d 871, 873 (8th Cir. 2002) (noting that three other circuit courts have
interpreted the one-year limit to apply to only cases not originally removable). Some
district courts have disagreed, however. See, e.g., Royer v. Harris Well Service, 741 F.
Supp. 1247, 1248 (M.D. La. 1990). This Court agrees with the circuit courts that have
considered the issue. Moreover, because the issue was not raised by the parties, and
because the Second Circuit would likely find this issue to be procedural, not
jurisdictional, see Hill v. Delta Intern. Machinery Corp., 386 F. Supp. 2d 427, 430
(S.D.N.Y. 2005); see also Phoenix Global Ventured, LLC v. Phoenix Hotel Assoc., 422
F.3d 72, 75 (2d Cir. 2005), this Court cannot raise it sua sponte, see Smith v. Mylan
Inc., 761 F.3d 1042, 1045-46 (9th Cir. 2014).
The removal here is based on diversity jurisdiction and the case was removed
more than a year after the action was filed in state court. But the action was removable
from the beginning, see 15-CV-829 Docket Items 12 and 13, and no party raised this
issue. Therefore, the one-year limit in Section 1446(c) does not apply and will not be
further considered by this Court.
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