Opinion
00-CV-6659
February 12, 2001
Memorandum Order
This action was removed to federal court by defendant Local 1205, Int'l Brotherhood of Teamsters ("Local 1205") on November 7, 2000. Plaintiff Heavy Construction Lumber, Inc. moves to remand this action back to the Supreme Court of New York, County of Kings on the ground that the removal was untimely.
Plaintiff and defendant are parties to a collective bargaining agreement ("CBA") that provides for binding resolution of disputes by arbitration. (Appended as Exh. B to Pl.'s Exh. B) Plaintiff seeks in this action to set aside an arbitration award entered on April 22, 2000 on the ground that the arbitrator failed to grant plaintiff an adjournment which would have permitted its Secretary to testify as to representations and misrepresentations that purportedly were made during the execution of the CBA.
Plaintiff initially purchased an index number and filed its Notice of Petition and Petition in the Supreme Court of New York on July 31, 2000. (Weisberg Decl., 4) On August 2, 2000, plaintiff served the Notice of Petition and Petition, along with an Affidavit of Steven Erens and a Request for Judicial Intervention, on defendant by delivery to Stacy Guerrero, who plaintiff claims was authorized to accept process for Local 1205. (Weisberg Decl., 4; Pl.'s Exh. A) Guerrero is an office secretary employed by Local 1205 and, according to defendant, was never authorized by Local 1205 to accept legal process on its behalf and is not authorized to receive process under New York General Associations Law § 13 (McKinney 1994). (Def.'s Mem., 2) According to plaintiff, the Clerk of the Supreme Court refused to place the case on the calendar and, for that reason, plaintiff had to re-serve its Notice of Petition and Petition on defendant on October 27, 2000. (Weisberg Aff. ¶ 5) The record does not reveal how service was made on October 27, 2000 or who, if anyone, received the Notice of Petition and Petition on behalf of defendant.
Defendant filed a Notice of Removal on November 7, 2000. (Weisberg Aff. Ex. A) Thus, the Notice of Removal was filed more than 30 days after the first service of process but less than 30 days after the second service of process. Defendant contends in the Notice of Removal that jurisdiction lies in this court because plaintiffs action is governed by, indeed preempted by, federal labor law. (Id. at 9) The Notice of Removal further provides that it has been filed "within thirty (30) days after defendant received plaintiffs initial pleadings, as required by 28 U.S.C. § 1446(b)." (Id. at 11)
Plaintiff now argues that the Notice of Removal was not timely filed and that the action should be remanded to New York Supreme Court. Defendant contends that because plaintiff failed to properly serve it on August 2, 2000, the 30-day period for removal was not triggered on that date. Although defendant does not specifically concede that plaintiffs attempt to re-serve the Notice of Petition and Petition on October 27, 2000 constituted formal service, it can be assumed from defendant's argument that removal was timely that defendant believes that the 30 day time period within which it was to file a Notice of Removal was triggered on that date. Thus, resolution of this motion turns on the question of whether the delivery of the Notice of Petition and Petition to Ms. Guerrero on August 2, 2000 constituted proper service such that it triggered the 30 day period within which a Notice of Removal must be filed. If it did constitute proper service, the Notice of Removal was indeed untimely and plaintiffs motion to remand should be granted. If it did not and if service was instead effected on October 27, 2000, removal was timely and plaintiffs motion should be denied.
Discussion
Defendant argues that removal was timely since its Notice of Removal was filed within 30 days of service, which defendant contends was effected on October 27, 2000. Defendant contends that plaintiffs attempted service of the Notice of Petition and Petition on August 2, 2000 did not trigger the 30 days for removal because under New York General Associations Law, service should have been made on a union's president, vice president, treasurer, assistant treasurer, secretary, or business agent." New York Gen. Ass'ns. Law § 13; see also Almodovar v. American Postal Workers Union., No. 90 Civ. 5753, 1991 U.S. Dist. LEXIS 355 (S.D.N Y 1991). In its Memorandum submitted in support of its motion for remand, plaintiff maintains that service was properly effected on August 2, 2000 since on that day the Notice of Petition and Petition "were duly served upon the respondent by delivery to Stacy Guerrero who was duly authorized to receive process by LOCAL 1205" (Weisberg Aff., ¶ 4 and Ex. A); that defendant failed to object to the form of service in a pleading or timely move for judgment dismissing the case for lack of personal jurisdiction; and that therefore it must be assumed, for purposes of calculating the time within which a notice of removal must be filed, that service was effected on August 2, 2000.
Removal to federal district court is governed by 28 U.S.C. § 1446(b) which requires, in relevant part, the filing of a notice of removal of a civil action "within thirty 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 proceedings is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served upon the defendant, whichever period is shorter." 28 U.S.C. § 1446(b). A defendant bears the burden of establishing "by competent proof' that removal is proper in the event plaintiff moves to remand the action. See R.G. Barry Corp. v. Mushroom Makers. Inc., 612 F.2d 651, 655 (2d Cir. 1979); see also United Food Commercial Workers Union v. Centermark Props. Meriden Square. Inc., 30 F.3d 298, 301 (2d Cir. 1994).
In Murphy Bros., Inc. v. Michetti Pipe Stringing. Inc., 526 U.S. 344 (1999), the United States Supreme Court granted certiorari to resolve a dispute among the circuits as to "whether service of process is a prerequisite for the running of the 30-day removal period under § 1446(b)." Id. at 349. Plaintiff in that case filed a Complaint in Alabama state court on January 26, 1999 but did not serve the defendant at that time. Instead, plaintiff faxed a courtesy copy of the Complaint to the defendant 3 days later. The parties engaged in settlement discussions until February 12, 1996, when plaintiff officially served the Complaint on defendant. On March 13, 1996, 30 days after service but 44 days after receiving the faxed copy of the Complaint, defendant removed the case to district court. Plaintiff moved to remand on the ground that, like here, the Notice of Removal had not been filed within 30 days of the date on which defendant first "received" the Complaint via facsimile. On these facts, the Court inMurphy Bros. held that "a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint "through service or otherwise'." Id. at 347-348 (emphasis added). Critical to the Court's interpretation of § 1446(b) was its understanding that Congress, in originally enacting this provision, did not intend to depart from the "traditional understanding" that "[i]n the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant." Id. at 350. In states such as New York, service of the summons commences the action and could precede the filing of the complaint, and the period for removal under § 1446 as originally enacted could have expired before the defendant actually obtained the complaint. To avoid this situation, Congress amended § 1446 in 1965 by extending the period of removal from 20 to 30 days, ensuring that the defendant would have access to the complaint before the period for removal began. Thus, Murphy Bros. clearly holds that the 30 days within which a Notice of Removal must be filed is only triggered by formal service.
Courts that have interpreted Murphy Bros. have similarly held that proper service must be effected before the 30 days for removal are triggered, despite the fact that § 1446(b) on its face contemplates receipt of the complaint "through service or otherwise". See Heredia v. Transport S.A.S. Inc., 101 F. Supp.2d 158, 160 (S.D.N.Y. 2000) ("[O]nce a defendant receives a copy of the initial pleading — in this case, the summons and complaint — the thirty-day period for filing notice of removal is triggered, provided that service of the initial pleading is proper.");Whitaker v. Fresno Telsat Inc., No. 99 Civ. 6059, 1999 U.S. Dist. LEXIS 14870 (S.D.N.Y. Sept. 24, 1999) (Murphy Bros. "makes clear that the thirty-day removal period set forth in § 1446(b) is triggered only by proper service of a 'complaint.'"); Quinones v. Minority Bus Line Corp., No. 98 Civ. 7167, 1999 U.S. Dist. LEXIS 5381, *4 (S.D.N.Y. Apr. 15, 1999) (citing Murphy for the same proposition but remanding to determine factual issue as to when defendant received the pleading); Ward v. Aetna Life Ins. Co., No. 98 Civ. 542E, 1999 U.S. Dist. LEXIS 5133, *2 (W.D.N.Y. April 12, 1999) ("the Court's reasoning [in Murphy Bros.] supports the conclusion that the time for removal commences when service is completed and jurisdiction over the defendant has been obtained.").
While acknowledging the Murphy Bros. case, plaintiff argues that its delivery of a Notice of Petition and Petition to Stacy Guerrero constituted formal service on defendant. Whether it did or not, however, is a question that can only be answered by reference to New York state law. Section 13 of the New York General Associations Law provides that a court has jurisdiction over a labor organization when "service of the summons, subpoena or other legal process" has been effected on the "president, vice president, treasurer, secretary, assistant secretary, or business agent, in his capacity as such. . . ." N.Y. Gen. Ass'ns. Law § 13 (McKinney 1994). That section is to be construed strictly, and a plaintiffs decision to attempt service on a person not listed in that section is inadequate.Almodovar 1991 U.S. Dist. LEXIS 355 at **4-5 (citing Long Island Home v. Borelli, 85 Civ. 4561 (E.D.N.Y., March 6, 1986)); see also Salitra v. Borson, 127 Misc. 173; 215 N.Y.S. 332 (1926) (holding that § 13 permits an action to be brought against the president or treasurer of a labor association, but that "[t]he order and the papers upon which it was granted must be served on the defendant association in the manner prescribed by law.")
Plaintiff in this case admittedly failed to serve any of the individual union representatives listed in § 13 of the New York General Associations Law when it delivered the Notice and Petition and Petition to defendant's offices of August 2, 2000. Ms. Guerrero holds none of the positions described in the statute and is instead, according to defendant, a member of the secretarial staff of Local 1205. Local 1205 is a labor organization, service upon which is strictly governed by § 13. Accordingly, defendant has established that plaintiff failed on August 2, 2000 to serve Local 1205 in the manner contemplated by § 13 and that the 30-day period contemplated by § 1446(b) could not have been triggered on that day. Although neither of the parties provide the details of plaintiff's re-service on October 27, 2000, defendant, in arguing that removal was timely, defendant must be deemed to concede that service of the Notice of Petition and Petition was proper on that date See e.g., Heredia, 101 F. Supp.2d at 160 ("Thus, once a defendant receives a copy of the initial pleading — in this case, the summons and complaint — the thirty-day period for filing notice of removal is triggered, provided that service of the initial pleading is proper.") (citing Murphy Bros., 526 U.S. at 347-48). As such, defendant's Notice of Removal was timely filed, and plaintiffs motion to remand should be denied.
Plaintiff's waiver argument, namely that defendant waived any objections to ineffective service by failing to raise this objection in a pleading or moving for judgment on that ground, does not disturb this conclusion. As support for his argument, plaintiff has cited CPLR § 3211(e), which provides in relevant part that "an objection that the. . . notice of petition and petition was not properly served, is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading, unless the court extends the time upon the ground of undue hardship."
Plaintiff's argument is problematic for two reasons. First, plaintiffs reading of § 3211(e) is not supported by the plain language of the rule. While plaintiff would conclude that a "timely served responsive pleading" (Pl.'s Mem., 10), the rule simply contemplates that if a defendanthas raised such an objection, its failure to move for judgment on that basis within 60 days constitutes a waiver. Other than filing a Notice of Removal, defendant in this case has not yet made any responsive pleadings and, not having done so, the 60 days contemplated by § 3211(e) have not begun.
More importantly, the filing of a removal does not itself waive the jurisdictional defect. In arguing that it does, plaintiff cites a case decided by the First Appellate Department, Quinn v. Booth Memorial Hosp., 239 A.D.2d 266, 657 N.Y.S.2d 680 (1st Dep't 1997), which held that "filing of a removal petition effected a general appearance precluding their objections to defective service under CPLR 308(1) or (2) after the case was remanded to State court." However, this action has not been remanded to state court and, as such, the question of whether removal constitutes a waiver of objections based on personal jurisdiction not only has been decided according to federal law but has been decided against plaintiff.See Cain v. Commercial Publishing Co., 232 U.S. 124 (1914) (holding that removal does not on its own cause a defendant to waive an objection to personal jurisdiction); Wurtenberger v. Cunard Line Ltd., 370 F. Supp. 342, 343 (S.D.N.Y. 1974) ("F.R.Civ.P. 81(c) specifically provides that the federal rules apply to civil cases removed to federal court, and the courts have consistently held that federal law will be applied to the issue of waiver."); Weinberg v. Colonial Williamsburg. Inc., 215 F. Supp. 633, 637 (E.D.N.Y. 1963) ("The fact that the New York courts have held that the filing of a removal petition effects a general appearance, thus waiving any objections to defective service and jurisdiction over the person has no impact on what is purely a federal procedural matter. The only opportunity a state court would have to make such a determination under current practice would be after the federal court, to which the action was originally removed, has determined that it lacks jurisdiction. . . . [T]he determination of questions of jurisdiction over the person and adequacy of service are to be determined by the federal court.") (internal citations omitted). See also Hartling v. Woodloch Pines, No. Civ. 1998, U.S. Dist. LEXIS 14060, *7 n. 1 (S.D.N Y Sept. 8, 1998) ("A notice of removal by itself does not waive the Rule 12(b) defenses.") (citing Cantor Fitzgerald. L.P. v. Peaslee, 88 F.3d 152, 157 n. 4 (2d Cir. 1996) ("Removal does not waive any Rule 12(b) defenses.")). Because this action has not been remanded, CPLR § 308 does not govern, and removal, pursuant to federal procedural rules, does not constitute a waiver of the defense of lack of jurisdiction over the person.
Conclusion
For the foregoing reasons, service of the Notice of Petition and Petition was not proper on August 2, 2000, but was proper on October 27, 2000, as may be assumed from defendant's argument that it timely filed a Notice of Removal under 28 U.S.C. § 1446 (b). Removal was therefore timely, and plaintiff's motion to remand is therefore denied.
SO ORDERED.