Opinion
01 Civ. 11224 (TPG)
May 31, 2002
OPINION
Plaintiffs move to remand this case to New York Supreme Court. They claim that defendant's removal of the case to the federal court was both improper and untimely. Defendant opposes plaintiffs' motion to remand claiming that the motion is untimely. Both sides seek cost and fees.
Facts
The action was originally filed in Supreme Court, New York County. On September 28, 2001 plaintiffs served defendant a copy of the summons and complaint upon the New York State Insurance Department, defendant's duly authorized representative to receive service. Defendant received the summons and complaint on October 18, 2001.
On December 6, 2001 defendant removed the case to the Southern District.
At a conference with the court in December, the court stated that it appeared that the removal was untimely. Plaintiffs' attorney requested time to review the matter.
On September 19, 2002 plaintiffs filed the present motion to remand the case to state court.
Discussion
A notice of removal must be filed within 30 days after the time the defendant receives a copy of the initial pleading. 28 U.S.C. § 1446(b). A motion to remand must be made within 30 days after notice of removal is filed with the federal court. 28 U.S.C. § 1447(c).
This case presents a situation where the removal was untimely, but the motion to remand is also untimely. Therefore the motion to remand must be denied.
The mutual applications for fees and costs are both denied.
SO ORDERED.