Park v. McGowan

• Decision Date: 19 October 2011
• Docket Number: 11-CV-3454 (JG) (CLP)
• Parties: BINI S. PARK, Plaintiff, v. JOHN MCGOWAN, WENDY MORRIS and PATRICK J. ABBOTT, Defendants.
• Court: U.S. District Court — Eastern District of New York

BINI S. PARK, Plaintiff, v. JOHN MCGOWAN, WENDY MORRIS and PATRICK J. ABBOTT, Defendants.

11-CV-3454 (JG) (CLP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: October 19, 2011

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

APPEARANCES :

LAW OFFICES OF CHARLES C. KHYM

By: Kristopher Kim

Attorneys for Plaintiff

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

By: Brian Del Gatto

Attorneys for Defendants John McGowan and Wendy Morris

JOHN GLEESON, United States District Judge:

Plaintiff Bini S. Park commenced this personal injury action in state court against John McGowan, Wendy Morris and Patrick J. Abbott. On July 18, 2011, McGowan and Morris removed the action to this Court, asserting federal subject matter jurisdiction on the basis of diversity of citizenship. On August 18, 2011 - 31 days later - Park moved to remand this action to state court. For the reasons set forth below, the motion to remand is denied.

BACKGROUND

Park brought suit in the Supreme Court of the State of New York, Bronx County on May 17, 2011, seeking to recover damages for injuries he allegedly sustained during a three-car accident. Park alleges that he, McGowan and Abbott were each driving one of the cars and that Morris owned the car McGowan was driving. Compl. ¶¶ 22-29.

Park alleges that he is a New Jersey resident, that McGowan and Morris are Canadian residents, and that Abbott is a New York resident. Id. ¶¶ 1-3, 16. Although the complaint did not specify the amount of damages Park seeks to recover, he served a demand for damages of $250,000 on June 29, 2011.

On July 18, 2011, two of the three defendants - McGowan and Morris - filed a notice of removal in this Court, asserting there is federal subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(2) due to the purportedly diverse citizenship of the parties. The notice of removal was entered on the docket the next day. Four days before they filed the notice of removal, McGowan and Morris had sent a copy of their notice to Park. On July 20, 2011, Judge Cheryl L. Pollak, the Magistrate Judge assigned to this case, issued an order scheduling an initial conference, which Park's counsel received two days later, on July 22, 2011. On August 18, 2011, Park moved to remand this action to state court.

DISCUSSION

A. Removal and Remand Procedures

A defendant in a civil action filed in state court generally may remove that action to a federal district court if the plaintiff could have filed the action in federal court. See 28 U.S.C. § 1441(a); Port Auth. of N.Y. & N.J. v. Am. Stevedoring, Inc., No. 10-CV-99 (JG), 2010 WL 979733, at *1 (E.D.N.Y. Mar. 16, 2010). The procedure for removing a case is initiated when the removing party files a notice of removal in federal court. See 28 U.S.C. § 1446(a).

A motion to remand based on any defect in removal other than a lack of subject-matter jurisdiction "must be made within 30 days after the filing of the notice of removal." 28U.S.C. § 1447(c). Any non-jurisdictional objection not raised within 30 days of the filing of the notice of removal is waived. See Shapiro v. Logistec USA Inc., 412 F.3d 307, 315 (2d Cir. 2005).

A court generally may not excuse the 30-day limit for non-jurisdictional objections to removal; after 30 days have passed, a court "lack[s] authority under § 1447(c) to remand." Id. (quoting Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 644 (2d Cir. 1993)) (internal quotation marks omitted); see also Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 75 (2d Cir. 2005) (holding that § 1447(c)'s 30-day "deadline is plainly mandatory"). As is always the case, a lack of subject-matter jurisdiction may be raised at any time before entry of judgment. Property Clerk, N.Y. City Police Dep't v. Fyfe, 197 F. Supp. 2d 39, 41-42 (S.D.N.Y. 2002) (citing § 1447(c)).

B. Park's Asserted Grounds for Remand

Park does not challenge the removing defendants' claims of complete diversity of the parties and that the amount in controversy exceeds $75,000, which are the prerequisites of federal subject matter jurisdiction under 28 U.S.C. § 1332(a)(2).¹ Park instead invokes the "forum defendant rule" and the "rule of unanimity" as grounds for remand.

The "forum defendant rule" bars removal if any of the defendants "properly joined and served" is a citizen of the state in which the action is brought. 28 U.S.C. § 1441(b). The "rule of unanimity" requires that, in a case with more than one defendant, the defendants unanimously consent to removal. See Stop & Shop Supermarket Co. v. Goldsmith, No. 10-CV-3052 (KMK), 2011 WL 1236121, at *2 (S.D.N.Y. Mar. 31, 2011); Miller v. First Sec. Invs., Inc.,30 F. Supp. 2d 347, 350 (E.D.N.Y. 1998) ("Although there is no express statutory requirement for joinder or consent by co-defendants, there is widespread agreement among the district courts, including those in the Second Circuit, that 'all named [defendants] over whom the state court acquired jurisdiction must join in the removal petition for removal to be proper.'" (quoting Still v. DeBuono, 927 F. Supp. 125, 129 (S.D.N.Y.), aff'd on other grounds, 101 F.3d 888 (2d Cir. 1996)) (alteration in original)); see also Cal. Pub. Emps. Ret. Sys. v. Worldcom, Inc., 368 F.3d 86, 103 (2d Cir. 2004); Bradford v. Harding, 284 F.2d 307, 309 (2d Cir. 1960) (Friendly, J.). Courts have inferred this rule from § 1441(a)'s language that removal may be made "by the defendant or the defendants," rather than by "a defendant." See Bradford, 284 F.2d at 309.

Both the forum defendant rule and the rule of unanimity are non-jurisdictional objections to removal. See Shapiro, 412 F.3d at 313 (forum defendant rule "is a rule of procedure and does not state a jurisdictional requirement"); Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 516-17 (6th Cir. 2003) (rule of unanimity is a non-jurisdictional requirement); Farmland Nat'l Beef Packing Co. v. Stone Container Corp., 98 F. App'x 752, 756 (10th Cir. 2004) ("[T]he lack of unanimous consent is a procedural defect, not a jurisdictional defect."); Borden v. Blue Cross & Blue Shield of W. N.Y., 418 F. Supp. 2d 266, 270 (W.D.N.Y. 2006) (referring to "lack of unanimity" as "a non-jurisdictional defect in the removal proceeding" that may be waived). Accordingly, both objections are waived if the party seeking remand does not timely raise them.

In opposition to Park's motion, McGowan and Morris do not dispute that their removal of this action violates both the forum defendant rule and the rule of unanimity, since Abbott is purportedly a New York citizen and he has not consented to removal.² Instead, theyargue that Park has waived these objections by filing his remand motion more than 30 days after the filing of their notice of removal.

C. The Remand Motion Is Untimely

Park concedes that his motion to remand was made 31 days after the notice of removal was filed. He nevertheless argues that he has not waived his objections to removal. First, he notes that his motion was made within 30 days of the notice of removal's entry. Filing and entry are, however, distinct events. As one court explained,

"[e]ntry" and "filing" are words of art: "Entry" has a well defined meaning . . .; it occurs only when . . . an appropriate notation on the docket sheet [is] assigned to the action in the district court. Filing, on the other hand, means "the delivery of the thing filed into the actual custody of the proper officer keeping the records of the court. It connotes a deposit for permanent presentation."

Herrera v. First N. Sav. & Loan Ass'n, 805 F.2d 896, 899 (10th Cir. 1986) (citations and paragraph breaks omitted).

Section 1447(c) clearly specifies that the deadline to file a motion to remand is measured from the "filing" of the notice of removal rather than the date it is entered on the docket. In many other situations, a statute or rule specifies that filing deadlines run from the date a document is entered rather than filed. See, e.g., 8 U.S.C. § 1229a(c)(6)(B) (motions to reconsider in administrative removal proceedings "must be filed within 30 days of the date of entry of a final administrative order of removal" (emphasis added)); 28 U.S.C. § 1453(c)(1) (authorizing application to appeal an order ruling on a motion to remand a class action within "10 days after entry of the order" (emphasis added)); Fed. R. App. P. 4(a)(1)(A) (requiring a civil notice of appeal to be filed "within 30 days after the judgment or order appealed from is entered" (emphasis added)). Courts consistently hold that such provisions mean what they say and measure deadlines from the date of entry rather than filing. See, e.g., United States v. Fiorelli,337 F.3d 282, 287 (3d Cir. 2003) ("although an order may be signed by the district court, received by the clerk, and entered in the docket on different days, the entry date controls" when calculating deadlines pursuant to rule measuring timeliness from date of entry); SEC v. Van Waeyenberghe, 284 F.3d 812, 815 (7th Cir. 2002) (where date of filing and entry of order differ, date of entry determines deadlines for motions and appeal); United States v. Doyle, 854 F.2d 771, 772 (5th Cir. 1988) (under rule specifying deadline for taking an appeal, "timeliness is measured from the date of entry of the judgment on the docket sheet, not from its date of filing"); United States v. Andrews, 790 F.2d 803, 806 (10th Cir. 1986) (same). Here, in the reverse situation - where § 1447(c) specifies that a deadline runs from the date of "filing" rather than entry - a court must also respect the clear statutory language. Cf. Farmland Nat'l Beef Packing Co., 98 F. App'x at 756 (rejecting argument that time for seeking remand did not begin to run until all procedural steps required by § 1446(d) for removal were complete as "contravene[ing] the plain language of § 1447(c)").

Second, Park asserts that his lateness in moving to remand should be excused because McGowan and Morris did not comply with their obligation to "give written...