Nannuzzi v. King

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: Jay D. Kramer, New York City, for defendant Stephen King
• Citation: Nannuzzi v. King, 660 F.Supp. 1445 (S.D. N.Y. 1987)
• Decision Date: 21 May 1987
• Docket Number: No. 87 Civ. 1058 (LBS).,87 Civ. 1058 (LBS).
• Parties: Armando NANNUZZI, Plaintiff, v. Stephen KING, Martha Schumacher, Marilyn Stonehouse, Steve Galich, David Sandlin, Mel Pearl, Don Levin, Dino DeLaurentiis, Dino DeLaurentiis Corporation, Dino DeLaurentiis Productions, Inc., Trucks Productions, S.A., International Film Corporation, Adams Apple Productions, Bon Bon Entertainment, Inc., Marquis Productions, Inc., North Carolina Film Corporation and Sabre Effects Co., Defendants.

660 F. Supp. 1445

Armando NANNUZZI, Plaintiff, v. Stephen KING, Martha Schumacher, Marilyn Stonehouse, Steve Galich, David Sandlin, Mel Pearl, Don Levin, Dino DeLaurentiis, Dino DeLaurentiis Corporation, Dino DeLaurentiis Productions, Inc., Trucks Productions, S.A., International Film Corporation, Adams Apple Productions, Bon Bon Entertainment, Inc., Marquis Productions, Inc., North Carolina Film Corporation and Sabre Effects Co., Defendants.

No. 87 Civ. 1058 (LBS).

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

May 21, 1987.

Robert L. Herbst, New York City, for plaintiff.

Jay D. Kramer, New York City, for defendant Stephen King.

Capriano & Lichtman, P.C., New York City, for defendants Martha Schumacher and Intern. Film Corp.

Simpson Thacher & Bartlett, New York City, for defendants Adams Apple Productions, Productions Ltd., sued as Truck Productions, Ltd., Dino DeLaurentiis Corp., David Sandlin and Melvin Pearl; Barry Ostrager and Sharon Thompson, of counsel.

Michael S. Goodman, Hackensack, N.J., for defendants Bon Bon Entertainment, Inc. and Marquis Productions, Inc.

Quirk & Bakalor, P.C., New York City, for defendants Deg Film Studios, Inc., sued as North Carolina Film Corp.

SAND, District Judge.

Plaintiff, Armando Nannuzzi, moves pursuant to 28 U.S.C. § 1447(c) to remand his personal injury case to the Supreme Court, State of New York, New York County as improvidently removed to the Southern District of New York. For the reasons discussed below, the motion is granted.

Background

This is an action sounding in negligence and strict liability against numerous defendants which arises from an incident occurring on July 31, 1985 on the set of a motion picture entitled "Maximum Overdrive." On that date, plaintiff, a cinematographer employed as the film's Director of Photography, allegedly sustained severe and permanent damage to his "shooting eye" when a remote-controlled power lawnmower lost control and splintered wooden wedges on which a camera was resting. See Complaint ¶¶ 44-49. Plaintiff commenced this action in state court on September 12, 1986 by service of a summons and complaint on defendant Marquis Productions, Inc. ("Marquis"). Approximately five months later, on February 17, 1987, defendant Adams Apple Productions ("Adams Apple"), waiving service of process, petitioned for removal based on diversity pursuant to 28 U.S.C. § 1441(a), and the case was removed to this Court. In the interval between Nannuzzi's September 1986 service of the summons and complaint on Marquis, and Adams Apple's February 1987 filing of the petition for removal, service was effected on other defendants as indicated on the following reference chart:

     Defendants                        Dates of Service
                BON BON ENTERTAINMENT, INC.           September 26, 1986
                INTERNATIONAL FILM CORPORATION        September 29, 1986
                DINO DE LAURENTIIS PRODUCTIONS
                  INC.                                September 29, 1986
                DEG FILM STUDIOS, INC. (sued as
                  "North Carolina Film Corporation")  November 5, 1986
                STEPHEN KING                          November 24, 1986
                DINO DE LAURENTIIS                    February 13, 1987
                DAVID SANDLIN                         February 13, 1987
                

The February 17, 1987 petition for removal, filed on behalf of Adams Apple, stated that seven other defendants (Dino DeLaurentiis, Dino DeLaurentiis Corp., Truck Productions, Mel Pearl, Don Levin, Marilyn Stonehouse, and Steve Galich), also represented at the time by the firm representing Adams Apple, consented to removal of the action to federal court. However, the petition noted the consent of only two of the defendants served on or before February 13, 1987: Dino DeLaurentiis and DEG Film Studios, Inc. (sued as North Carolina Film Corporation). Of these two, DEG Film Studios, Inc. had been served more than three months earlier. The other served defendants listed on the reference chart, see infra, as well as defendant Martha Schumacher (who had appeared in state court through counsel for International Film Corporation in an answer filed jointly on December 31, 1986) and defendant Marquis, are simply not referred to in the removal petition. A final factual observation is that plaintiff alleges that defendant Marquis and defendant Bon Bon Entertainment, Inc. ("Bon Bon") are New York residents. See Affirmation in Support of Motion for Remand at ¶ 4.

Discussion

Plaintiff argues that removal was improvident on two grounds either of which, if established, would be sufficient to warrant a remand. First, plaintiff contends that the parties did not consent to removal in a timely fashion. Second, plaintiff argues that the presence of two previously served defendants who are residents of New York State, from whose courts this action was removed to federal court, precludes removal under 28 U.S.C. § 1441(b).

The burden of establishing the propriety of removal rests on the party who has filed the petition for removal. Ortiz v. Gen. Motors Acceptance Corp., 583 F.Supp. 526, 530 (N.D.Ill.1984). Under the facts of this case, two interrelated rules regarding removal make that burden insurmountable. 28 U.S.C. § 1446(b) requires that a petition for removal be filed within thirty days of the receipt by the defendant of the initial pleading in the case. In addition, and of significance here, the unanimous consent of all defendants in a multi-party case is generally a precondition to removal. Brown v. Demco, Inc., 792 F.2d 478 (5th Cir.1986). Pursuant to the unanimous consent rule, the law requires that a removal petition set forth that "each of the defendants desires, and is eligible for, removal." Ortiz, 583 F.Supp. at 529. Where defendants are served at different times, and previously served defendants who would have to consent to removal, abstain from seeking removal or fail to petition for removal in a timely fashion, the prevailing rule is that a subsequently served defendant may not in ordinary circumstances remove the case. Brown, 792 F.2d at 481; see also 1A J. Moore, Moore's Federal Practice § 0.168 3.5-5, 586-87 (2d ed. 1985). Thus, "the thirty-day period starts to run from the time of service on the first defendant who would have to be joined in the removal petition." 1A J. Moore, Moore's Federal Practice, supra, at 586. Underlying these prevailing principles is the rule of unanimity, which is violated when the first defendant whose consent is required fails to effect removal within thirty days of service. Brown, 792 F.2d at 482.

Recitation of the prevailing removal rules, which Adams Apple and the other defendants who have submitted papers in opposition to the motion urge us to reject, underscores the deficiencies present here. Adams Apple's petition for removal listed the consent of only some of the previously served defendants. Unanimous consent to removal was not obtained and could not have been obtained due to the failure of the previously served diverse defendants to seek removal in a timely fashion. Defendant International Film Corporation, as noted above, had not only failed to petition for removal within thirty days of the September 29, 1986 service upon it, but also had filed discovery demands in the state court proceeding in December 1986. See Plaintiff's Reply Affirmation at 4. The consent of this latter defendant was not noted in the removal petition and was only belatedly set forth in a May 7, 1987 affirmation in opposition to plaintiff's motion to remand. The consent to removal of all other defendants not named in Adams Apple's petition is similarly belated.

In opposition to the motion to remand, it is argued that any deficiencies in the removal petition are mere procedural irregularities that do not warrant remand. In this connection, Adams Apple argues that it believed that those defendants whose consent was noted in the remand petition were the only ones which plaintiff had served as of the time the petition was filed. See Memorandum of Law in Opposition to Plaintiff's Motion to Remand at 6. No case has been cited, however, which supports the proposition that the removal requirements should be suspended due to a defendant's belief that other previously served defendants whose consent to removal is required have not been served. In any event, the basis for Adams Apple's belief does not appear in the record. There is no indication that Adams Apple contacted the previously served defendants whose consent was not recorded. At the oral argument, counsel for defendants International Film Corporation and Martha Schumacher stated that they had not been contacted about removal, but now consent thereto.

This is not a case in which recognized exceptions to the requirement that...