Burr ex rel. Burr v. Toyota Motor Credit Co.

• Decision Date: 01 November 2006
• Docket Number: No. 06 Civ.7105 SAS.,06 Civ.7105 SAS.
• Citation: 478 F.Supp.2d 432
• Parties: Daisy BURR, an infant by her f/n/g Howard BURR, and Howard Burr, individually, Plaintiffs, v. TOYOTA MOTOR CREDIT CO. and Liliana Serrano, Defendants.
• Court: U.S. District Court — Southern District of New York

478 F.Supp.2d 432

Daisy BURR, an infant by her f/n/g Howard BURR, and Howard Burr, individually, Plaintiffs, v. TOYOTA MOTOR CREDIT CO. and Liliana Serrano, Defendants.

No. 06 Civ.7105 SAS.

United States District Court, S.D. New York.

November 1, 2006.

COPYRIGHT MATERIAL OMITTED

Robert Jarred Bellinson, Wingate, Russotti & Shapiro, LLP, New York, NY, for Plaintiffs.

Peninna Hanna Oren, London Fischer, LLP, New York, NY, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

I. INTRODUCTION

Howard and Daisy Burr ("the Burrs"), both of whom are New York residents, brought this action on July 17, 2006 in the Supreme Court of the State of New York, alleging injuries to the infant Daisy as a result of being struck by a car driven by the defendant Liliana Serrano, a resident of New Jersey, in an accident that occurred on June 9, 2006 in New York.¹ Toyota Motor Credit Co. ("TMCC"), a foreign corporation, owned the vehicle, which it leased to Serrano² TMCC removed the case to this Court pursuant to section 1446 of title 28 of the United States Code, claiming federal jurisdiction on the basis of diversity.³ The Burrs now move for remand pursuant to section 1447 of title 28 of the United States Code, on the grounds that removal was not timely, and that TMCC failed to secure Serrano's consent.⁴

II. BACKGROUND

The Burrs bring two claims against Serrano and TMCC. First, they allege that Serrano struck Daisy as a result of the negligent operation of the motor vehicle that she leased from TMCC.⁵ As a result of the accident, Daisy suffered "serious and severe permanent personal injuries."⁶ Plaintiffs allege that Daisy "sustained a serious injury as defined in Section 5102(d) of the Insurance Law of the State of New York."⁷ Second, Howard claims permanent deprivation of Daisy's "society and services."⁸ The Complaint does not specify the amount of damages sought. As to both claims, the Burrs allege that TMCC is liable by virtue of its ownership of the vehicle and because it permitted Serrano to operate it.⁹

Serrano was served with process on July 27, 2006, by personal service of the Summons and Complaint on her mother, Maria Delvalle, at Serrano's home.¹⁰ A copy of the Summons and Complaint was mailed to Serrano's home address on July 28, 2006.¹¹ An affidavit of service was filed with the county clerk on July 28, 2006.¹² The Burrs affirm by affidavit that TMCC was served by means of personal delivery of the Summons and Complaint to the office Of the New York Department of State on August 14, 2006.¹³ An affidavit of service was filed in the county clerk's office on August 16, 2006.¹⁴ In its notice of removal, however, TMCC states that "the Summons and Complaint was served upon the New York Department of State via certified mail on August 16, 2006."¹⁵

Although TMCC states that it "received notice of this lawsuit from Corporation Service Company after ... August 16, 2006,"¹⁶ TMCC and Serrano filed a joint Answer on August 10, 2006.¹⁷ The Answer specifically denied an allegation against TMCC,¹⁸ and advanced affirmative defenses on behalf of the "defendants."¹⁹ Two of these affirmative defenses were applicable only to TMCC, because they were based on section 30106 of title 49 of the United States Code, which protects lessors "engaged in the trade or business of renting or leasing motor vehicles" from tort liability arising out of the use, operation or possession of a vehicle by a lessee.²⁰ Elsewhere in its Notice of Removal, TMCC acknowledges that this Answer was, in fact, filed on its behalf.²¹

On September 15, 2006, TMCC filed a Consent to Change Attorney, replacing Cartiglia, Connolly & Russo with the law firm of London, Fischer, LLP.²² TMCC, by its new attorneys, filed a Notice of Removal based on diversity of citizenship pursuant to section 1337 of title 28 of the United States Code.²³ The Notice of Removal was accompanied by an Affidavit of Consent by Peninna Oren of London, Fisher, stating: "On September 14, 2006, Nicholas F. Russo counsel for defendant Liliana Serrano advised by telephone that he consents to and joins in the Removal of this action" by TMCC²⁴

On September 20, 2006, the Burrs moved to remand pursuant to section 1447(c).²⁵ The Burrs argued that TMCC's removal was untimely, Serrano had not joined or consented in the removal, and that TMCC failed to demonstrate in its removal petition that the amount in controversy exceeded seventy-five thousand dollars.²⁶ On October 2, 2006, Russo filed an Affirmation stating that Serrano consented to removal.²⁷

On October 5, 2006, Oren filed an Affidavit in Opposition to the Burrs' motion to remand.²⁸ TMCC asserted that despite the fact that the Complaint did not state an amount of damages it was "almost inevitable" that the demand for damages would exceed the statutory minimum.²⁹ Oren affirmed that she filed TMCC's Notice of Removal on September 15, 2006, "with the belief that [Oren] was in compliance with 28 U.S.C. § 1446(b) with respect to the requirement that a Notice of Removal must be made within thirty days of service."³⁰ Oren stated: "The basis of your affiant's belief was correspondence from TMCC's insurance carrier indicating that process was served upon TMCC by service upon the Secretary of State on August 16, 2006."³¹ Oren provided an unsigned fax dated September 1, 2006, from Tokio Marine Nichido to Clifford Aaron, of London, Fischer. The fax referred to the Burrs' action in the Supreme Court, and stated in relevant part: "Enclosed is a complete copy of my file to date, including the Summons & Complaint served on our insured on August 16, 2006."³²

III. LEGAL STANDARDS

A. Removal and Remand

Section 1441(a) of title 28 of the United States Code provides that "any civil action brought in state court of which the district courts of the United States have original jurisdiction, may be removed ... to the district court."³³ "[I]n light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability."³⁴ At all times the party asserting jurisdiction bears the burden of proof that jurisdictional and procedural requirements have been met.³⁵

A case is removable when the initial pleading enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal, the defendant can make a short and plain statement of the grounds for removal as required [by] 28 U.S.C. § 1446(a). A pleading enables a defendant to intelligently ascertain removability when it provides the necessary facts to support the removal petition.³⁶

A defendant who is served with a pleading that meets these criteria must file its notice for removal within thirty days.³⁷ Days are counted in accordance with Rule 6(a) of the Federal Rules of Civil Procedure.³⁸ Defects in removal procedure, including lack of timeliness, are not jurisdictional.³⁹ However, "the statutory time limit is mandatory ... [and] absent a finding of waiver or estoppel, federal courts rigorously enforce the statute's thirty-day filing requirement."⁴⁰

Courts differ as to when the thirty-day removal period begins to run where, as here, there are multiple defendants who are not served simultaneously, and the last-served defendant seeks removal.⁴¹ Some courts, including courts in this district, follow the "first-served defendant rule," which interprets the thirty-day provision of section 1446 to mean that no defendant may seek removal later than thirty days from when the first defendant was served.⁴² Other courts have adopted the "removing defendant" rule, which provides that each "defendant has 30 days from the date of service [of the complaint upon that defendant] to remove a case to federal district court."⁴³ The Second Circuit has never ruled on this question.⁴⁴

Where there are multiple defendants, "all named defendants over whom the state court acquired jurisdiction must join in the removal petition for removal to be proper."⁴⁵ This rule of unanimity is "strictly interpreted and enforced."⁴⁶ "While courts generally do not require all defendants to sign the removal petition itself, most courts have required some form of unambiguous written evidence of consent to the court in timely fashion."⁴⁷ "It is insufficient for a defendant who has not signed the removal petition to merely advise the removing defendant that it consents to removal and that the removing defendant may represent such consent to the Court on its behalf."⁴⁸ Failure of any defendant to provide its written consent within the applicable thirty-day period renders the petition for removal untimely.⁴⁹

Motions to remand based on procedural defects in removal are also subject to a timeliness requirement. Section 1447(c) provides that a "motion to remand the case on any basis 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)."⁵⁰

B. The Amount in Controversy Requirement

Federal courts may exercise diversity jurisdiction pursuant to section 1332(a) of title 28 of the United States Code only "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs."⁵¹ A party asserting jurisdiction bears the burden to show that there is "a reasonable probability that the claim is in excess of the statutory jurisdictional amount,"⁵² and must support its assertion of jurisdiction "with `competent proof and `justify [its] allegations by a preponderance of evidence.'"⁵³ Generally, where the complaint states an amount of damages, there is a strong presumption that the stated amount is the actual amount in controversy.⁵⁴ Where no amount is specified, this fact alone does not bar a finding that the jurisdictional amount has been met.⁵⁵ In such cases, courts examine the nature of the claims,⁵⁶ factual allegations...