Montaturo v. Costco Wholesale Corporation

Full title: FRANCES MONTATURO, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant

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

Date published: Jan 10, 2002

01 Civ. 9412 (WK) (S.D.N.Y. Jan. 10, 2002)

Opinion

01 Civ. 9412 (WK)

January 10, 2002

For Plaintiff: Wesley M. Serra, Esq., Bronx, New York.

For Defendant: Robert J. Walker, Esq., Gallagher, Walker, Bianco Plastaras, Esqs., Mineola, New York.

ORDER

WHITMAN KNAPP, Senior U.S. District Judge.

On August 31, 2001 plaintiff brought this personal injury action in New York Supreme Court, Bronx County. On September 14, 2001 plaintiff effectuated service on defendant by serving two copies of the summons and complaint to the Department of State in Albany New York (the "Department"). The Department sent a copy of the process by certified mail to defendant's designated agent, CT Corporation System. The receipt is signed and dated September 20, 2001. On September 26, 2001 defendant's legal department received notice of this action from CT Corporation System.

On October 23, 2001 defendant removed this case on the basis of diversity jurisdiction to the Southern District of New York. Currently before us is plaintiff's motion to remand pursuant to 28 U.S.C. § 1447(c) on the basis that defendant's notice of removal was filed more than thirty days after it was served with the pleadings.

Defendant does not dispute this chronology, but rather argues that the thirty day period did not begin to toll until the date its legal department received notice of this lawsuit from its designated agent. Although courts have held that service on a statutory agent is not sufficient to trigger the thirty day period within which defendant may remove, Calderon v. Pathmark Stores, Inc. (S.D.N.Y. 2000) 101 F. Supp.2d 246; Auguste v. Nationwide Mutual Insurance Company (E.D.N.Y. 2000) 90 F. Supp.2d 231, at least one court in this district has held that service on a "hand picked" designated agent, like CT Corporation System, is sufficient. Recyclers Consulting Group, Inc. (S.D.N.Y. October 3, 1997) No. 96 Civ. 2137 (Keenan, J.), 1997 WL 615014, *3-4 (noting a "significant distinction" between service on a designated agent as opposed to a statutory agent).

We hold that service on defendant's statutory agent was sufficient to trigger the start of the thirty day period. The fact that defendant's legal department may not have received actual notice of this action until six days later does not change the fact that by October 23, 2001 the period within which defendant may have removed this case had expired.

For this reason, we remand this case to state court.

SO ORDERED.