Jasiurkowski v. Stanley Black & Decker, Inc. et al

Filing 8

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 4/15/14. (jcj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
PAUL JASIURKOWSKI,
Plaintiff,
v.
STANLEY BLACK & DECKER, INC.
et al,
Defendants.

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CASE NO. 3:14-CV-00012
MEMORANDUM OPINION

This matter is before the Court upon Plaintiff’s motion to remand. For the reasons stated
below, I will deny Plaintiff’s motion.
I.

BACKGROUND

On or about March 17, 2012, Paul Jasiurkowski (“Plaintiff”) entered the business
premises of a Lowe’s Home Center’s, LLC (“Lowe’s”) establishment in Charlottesville,
Virginia. Plaintiff alleges that a large, automatic sliding glass door at the entrance to the store fell
and struck Plaintiff’s body and head, causing bodily injury resulting in damages totaling
$125,000. According to Plaintiff’s instant motion, a lawsuit was filed against Lowe’s in Louisa
County, Virginia on January 27, 2014. Pl.’s Mot. to Remand Br. 1. Plaintiff acknowledges that
the Louisa suit was filed to preserve the cause of action in the face of the two year statute of
limitations. Id. at 2. Plaintiff states that Lowe’s was served on February 4, 2014 in the Louisa
case, and that following service, “Counsel for Lowe’s disclosed that SB&D, was responsible for
maintaining and servicing the sliding glass door that fell on the Plaintiff.” Id. Accordingly,
Plaintiff filed the Albemarle Circuit Court lawsuit on February 18, 2014 with the intention of
non-suiting the Louisa case. Plaintiff’s complaint alleged one count against Defendant Lowe’s
and one count against Defendant Stanley Black & Decker, Inc. (“SB&D”), and held them jointly
and severally liable for the full $125,000 amount in controversy. On April 1, 2014, Defendant

SB&D filed its notice of removal to this Court, asserting that it received the cover sheet and
complaint in the Albemarle case on March 7, 2014.
II.

ANALYSIS

The requirements for removing a civil action to federal court are set out in 28 U.S.C. §
1446, which states that generally, “[t]he 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 setting forth the claim for relief upon which such action or proceeding is
based.” 28 U.S.C. § 1446(b)(1) (emphasis added). In his motion to remand, Plaintiff asserts that
removal was improper because “Plaintiff has made no attempt to serve the instant lawsuit on
Defendant, SB&D, nor has Plaintiff or Lowe’s provided a copy to SB&D. Nevertheless,
Defendant SB&D has alleged in its removal notice that it ‘received’ the instant lawsuit on March
7, 2014, and served its notice of removal on April 1, 2014.” Pl.’s Mot. to Remand Br. 2. Plaintiff
implies that removal was improper because Defendant SB&D had not yet been served.
However, it is settled within this district that the language of § 1446(b) does not require
actual service in order for there to be receipt. See, e.g., Hamilton v. Chrysler Corp., 1997 U.S.
Dist. LEXIS 344, at *3 (W.D. Va. 1997) (“Although strong policy arguments can be made for
the ‘proper service rule,’ the court believes that it is constrained by the plain language of §
1446(b) to follow the ‘receipt rule.’”); Shoemaker v. GAF Corp., 814 F. Supp. 495, 498 (W.D.
Va. ) (“this court is persuaded to follow the ‘receipt rule.’ First, the court believes that the
language of the statute is clear. The removal period commences when the defendant receives a
copy of the initial pleading ‘through service or otherwise.’ . . . [t]he ‘proper service rule’ cases
unjustifiably ignore the plain language of the statute”); see also Loncher v. Ericsson, Inc., 1998
U.S. Dist. LEXIS 21013, at *4-5 (E.D. Va. 1998) (“the ‘or otherwise’ language in the statute

clearly allows the thirty day period to commence upon the defendant’s receipt of the pleading”);
Leverton v. Alliedsignal, Inc., 991 F. Supp. 481, 484 (E.D. Va. 1997) (“it will not be the
circumstance in all cases that actual service will mark the starting point for the removal period
under the receipt rule”). Therefore, Defendant SB&D properly followed the statutory commands
of 28 U.S.C. § 1446(b)(1), and Plaintiff’s argument that Defendant had not yet been served is of
no consequence.
Plaintiff also argues that Defendant SB&D’s removal of this action was faulty because
Defendant SB&D did not receive the consent of Defendant Lowe’s to remove the action as is
required under 28 U.S.C. § 1446(b)(2)(A). Generally, “all defendants, who may properly do so,
[must] join in or otherwise consent to the removal notice.” Unicom Sys. v. Nat’l Louis Univ., 262
F. Supp. 2d 638, 641 (E.D. Va. 2003). However, “[a] defendant need not join a removal notice if:
‘(1) it had not been served with process at the time the removal petition was filed.’” Id. at 641 n.
3 (quoting Creekmore v. Food Lion, Inc., 797 F. Supp. 505, 508 (E.D. Va. 1992)). Notably,
Plaintiff does not contest this exception to the general rule nor suggest that Lowe’s has in fact
been served in the Albemarle case. Instead, Plaintiff argues that “[i]n actuality . . . Lowe’s had
been served with the original lawsuit in Louisa almost two months before SB&D filed its notice
of removal to this federal court.” Pl.’s Mot. to Remand Br. 3.
28 U.S.C. § 1446(b)(2)(A) states that “[w]hen 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.” Clearly, § 1446(b)(2)(A) contemplates that when an action is
removed, all defendants in that action who have been served must consent to removal. There is
no exception that states, and Plaintiff points to no authority to the contrary, that serving a
Defendant in one case means that they have been properly served in another case. While

“[c]ounsel for Lowe’s and counsel for Plaintiff [may have] agreed that Plaintiff would re-file the
suit in Albemarle County, Virginia,” the refiled case in Albemarle is distinct from the originally
filed Louisa case. Pl.’s Mot. to Remand Br. 2. Plaintiff admits as much when he states that “[a]t
the time of filing the lawsuit in Albemarle County and at the time of the filing of the instant
motion, the lawsuit originally filed in Louisa County is still active and pending.” Id. Plaintiff
does not suggest or present any evidence that Defendant Lowe’s has been served in this action,
meaning that under § 1446(b)(2)(A), Defendant SB&D did not require the consent of Defendant
Lowe’s to remove the action. Removal was therefore appropriate.
III.

CONCLUSION

Accordingly, because Defendant’s notice of removal complied with the timeliness and
consent provisions of 28 U.S.C. § 1446, Plaintiff’s motion to remand will be denied. An
appropriate order follows.
15th
Entered this ______ day of April, 2014.