Crenshaw v. McNamara et al

Filing 21

DECISION AND ORDER denying # 5 Plaintiff's motion to remand. Signed by Chief Judge Glenn T. Suddaby on 1/19/16. (lmw) (Copy served upon pro se plaintiff via regular mail at Clinton Correctional Facility)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________________
WILLIAM CRENSHAW,
Plaintiff,
Case No. 6:15-CV-6229 (GTS)
v.
JAMES McNAMARA; JOHN VanLOON; RICHARD
FONTANZA; LARRY BERNSTEIN; SANDRA
DOORLEY; and HON. CHARLES SIRAGUSA,
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

WILLIAM CRENSHAW, 98-B-0745
Plaintiff, Pro Se
Clinton Correctional Facility
Box 2001
Dannemora, NY 12929
MONROE COUNTY DEPARTMENT OF LAW
Counsel for Defendants Bernstein and Doorley
39 West Main Street, Room 307
Rochester, NY 14614

MALLORIE C. RULISON, ESQ.
Deputy County Attorney

HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendant Siragusa
144 Exchange Boulevard, Suite 200
Rochester, NY 14614

GARY M. LEVINE, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge,
United States District Court for the Northern District of New York1

1

Due to the presence in this action of claims against United States District Judge
Charles J. Siragusa of the Western District of New York, on approximately December 29, 2015,
this action was temporarily assigned to Chief Judge Suddaby of the Northern District of New
York by Chief Judge Robert A. Katzmann of the United States Court of Appeals for the Second
Circuit. (Dkt. No. 18; Docket Entry dated Dec. 29, 2015.)

DECISION and ORDER
Currently before the Court, in this pro se civil rights action by William Crenshaw
(“Plaintiff”) against the six above-captioned individuals (“Defendants”), is Plaintiff’s motion to
remand. (Dkt. No. 5.) For the reasons set forth below, the motion is denied.
Because the parties’ motion papers demonstrate an accurate understanding of this
action’s procedural history and the legal standards governing Plaintiff’s motion, the Court will
not repeat that procedural history and governing legal standards in this Decision and Order,
which is intended primarily for the review of the parties.
In his Decision and Order of August 11, 2015, United States District Judge David G.
Larimer correctly identified the two issues that are presented by the parties’ briefing of
Plaintiff’s motion to remand: (1) whether Plaintiff has submitted evidence that, on May 19, 2015,
he delivered his motion to remand to prison authorities for mailing to the Court (hereinafter
referred to as the “timeliness” issue); and (2) if so, whether Defendants James McNamara, John
VanLoon and Richard Fontanza (“RPD Defendants”) have submitted evidence that they consent
to removal (hereinafter referred to as the “unanimity” issue). (Dkt. No. 8.)
After carefully considering the matter, the Court answers the timeliness issue in the
affirmative. Plaintiff has submitted a properly verified statement, dated September 17, 2015,
paragraph 17 of which states, “Plaintiff’s motion to remand was sent out to be mail[ed] May 19,
2015 by Authorized Advance Request . . . .” (Dkt. No. 12, at ¶ 17.) He has also submitted a
copy of the Authorized Advance Request, which is dated May 19, 2015. (Dkt. No. 12, at 14-16.)
However, Plaintiff’s submission of this evidence does not end the Court’s inquiry regarding his
motion. This is because, as observed by Judge Larimer, the unanimity issue must be decided in
the event the timeliness issue is resolved in Plaintiff’s favor. (Dkt. No. 8, at 4.)
2

After carefully considering the matter, the Court answers the unanimity issue in the
affirmative. Granted, it would have been preferable for counsel for the RPD Defendants to have
submitted an affidavit stating that the RPD Defendants “verbally consented” to the removal at
the time of removal on April 20, 2015, as suggested by counsel for Defendants Doorley and
Bernstein. (Dkt. No. 7, at ¶ 9.) See also 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is
removed solely under section 1441(a), all defendants who have been properly joined and served
must join in or consent to the removal of the action.”) (emphasis added).
However, counsel for the RPD Defendants has submitted a letter to the Court stating that,
as of September 8, 2015, the RPD Defendants “support and join” the motion to remove and
oppose the motion to remand. (Dkt. No. 11.) Under the circumstances, this letter is sufficient to
independently express the RPD Defendants’ consent to removal. See Stone v. Bank of New York
Mellon, N.A., No. 13-15433, 2015 WL 1769370, at *2 (11th Cir. 2015) (“Although Prommis did
not join the notice of removal, it did oppose remand, and therefore the district court did not err
by refusing to remand for a technical defect related to the unanimity rule.”); Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009) (“And in this particular case, even assuming
that Home Depot's answer failed to satisfy the unanimity requirement, resulting in a technical
defect in the removal process, the defect was subsequently cured when Home Depot opposed
Esposito's remand motion, thereby clearly communicating its desire to be in federal court.”);
Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195, 202 (6th Cir. 2004) (“In addition, the fact that
[the defendant] opposed [the plaintiff's] motion to remand cured any purported defect in the
removal petition.”).

3

For all of these reasons, and the reasons stated in Defendants’ opposition papers (see,
e.g., Dkt. No. 7, Attach. 1; Dkt. No. 13), and Judge Larimer’s Decision and Order of August 11,
2015 (Dkt. No. 8), Plaintiff’s motion is denied.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion to remand (Dkt. No. 5) is DENIED.
Dated: January 19, 2016
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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