Thomas v. Baldwin, 01-CV-8598.

• Decision Date: 04 March 2002
• Docket Number: No. 01-CV-8598.,01-CV-8598.
• Citation: 189 F.Supp.2d 1
• Parties: Calvin THOMAS and Austin Williams, Plaintiffs, v. Robert BALDWIN and Province Cartage Systems d/b/a Sure Line Truck and Trailer, Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 1

189 F.Supp.2d 1

Calvin THOMAS and Austin Williams, Plaintiffs, v. Robert BALDWIN and Province Cartage Systems d/b/a Sure Line Truck and Trailer, Defendants.

No. 01-CV-8598.

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

March 4, 2002.

Rose M. Day, Great Neck, NY, for Plaintiffs.

Joseph Scarglato, New York City, for Defendants.

ORDER

GERSHON, District Judge.

On October 30, 2001, plaintiffs filed a summons and complaint against defendants in New York state court. Plaintiffs served these documents on both defendants through the New York Secretary of State on November 14, 2001 and by certified mail to each defendant on November 19, 2001. It is undisputed that defendant Province Cartage Systems received the mailed summons and complaint on November 26, 2001, and defendants do not contend that Robert Baldwin received the summons and complaint any later than that date. It is also undisputed that defendants did not file their notice of removal in this court until December 28, 2001.

A defendant who is served simultaneously with summons and complaint must file any notice of removal within thirty days of receiving those documents. 28 U.S.C. § 1446(b); Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999). This thirty-day filing period, "while not jurisdictional, is mandatory and failure to comply with it will defeat a defendant's removal petition." Nicola Products Corp. v. Showart Kitchens, Inc., 682 F.Supp. 171, 172 (E.D.N.Y.1988); Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1046 (2d Cir.1991). Furthermore, "absent waiver or estoppel, the thirty day period cannot be extended by court order, stipulation of the parties, or otherwise." Nicola Products, 682 F.Supp. at 173 (citations omitted); Somlyo, 932 F.2d at 1046 (citing Nicola Products with approval). To demonstrate waiver or estoppel, a defendant "must show that it reasonably relied to its detriment on plaintiff's representations that it would not object to removal on timeliness grounds." Harris Corp. v. Kollsman, Inc., 97 F. Supp.2d 1148, 1152 (M.D.Fla.2000) (citing, inter alia, Nicola Products). These representations "must take the form of affirmative conduct or unequivocal assent of a sort which would render it offensive to fundamental principles of fairness to remand." Id. In the context of a remand motion, the removing party has the burden of proof, and "federal courts construe the removal statute narrowly, resolving any doubts against removability." Somlyo, 932 F.2d at 1045-46; Brooklyn Hosp. Ctr. v. Diversified Info., Technologies, Inc., 133 F.Supp.2d 197, 200 (E.D.N.Y.2001).

In this case, there is no question that defendants filed their notice of removal thirty-two days after receiving the summons and complaint. Defendants argue that their delay in removing was attributable to settlement...