Opinion
NO. 01-CV-0069E(Sc).
May 23, 2001
ATTORNEYS FOR THE PLAINTIFF: Robert J. Lane, Jr., Esq., c/o Hodgson, Russ, LLP, One M T Plaza, Suite 2000, Buffalo, N.Y. 14203
ATTORNEYS FOR THE DEFENDANT: Gregory, Skegas, Cooper, Catalyst — Kevin J. English, Esq., c/o Phillips, Lytle, Hitchcock, Blame Huber, LLP, 3400 HSBC Center, Buffalo, N.Y. 14203 Anderson — Mark C. Rodgers, Esq., c.o Rodgers Coppola, 2020 Liberty Bldg., 420 Main St., Buffalo, N.Y. 14202
MEMORANDUM and ORDER
Plaintiff filed this action in New York State Supreme Court, Erie County, January 2, 2001 for breach of contract, breach of fiduciary duty and tortious interference with a contract. Defendants L. Thomas Gregory, George N. Skegas, Steven F. Cooper and Catalyst Equity Partners, LLC ("the Catalyst defendants") removed this case February 1, 2001 pursuant to 28 U.S.C. § 1446. This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(2) because plaintiff is a subject of a foreign state, defendants are citizens of the United States and the amount in controversy exceeds $75,000. Plaintiff filed a motion to remand this case to New York Supreme Court March 2, 2001 pursuant to 28 U.S.C. § 1447(c) alleging that the notice of removal was defective on two grounds — viz. (1) that defendant Stephen P. Anderson had not joined in or consented to the removal and (2) that the notice of removal failed to explain Anderson's absence therefrom. On March 22, 2001 Anderson's attorney, Mark C. Rodgers, Esq., filed an affidavit stating that Anderson had not been served until March 11, 2001 and that Anderson consented to the removal. Rodgers March 22, 2001 Aff. ¶¶ 2, 5. Presently before this Court is plaintiff's motion to remand.
The procedure for removing an action filed in state court to federal court is delineated in 28 U.S.C. § 1446. In general, all named defendants must join in a notice of removal, subject to three exceptions — viz., (1) the non-joining defendant has not been served, (2) the non-joining defendant is a nominal or formal party or (3) the removed claim is a separate and independent claim under 28 U.S.C. § 1441(c). Ell v. S.E.T Landscape Design, Inc., 34 F. Supp. 188, 193-194 (S.D.N.Y 1999). Anderson had not yet been served with the Complaint at the time the Catalyst defendants removed this case and, accordingly, it was not necessary for Anderson to join in the notice of removal for it to be effective; therefore plaintiff's motion to remand on such ground will be denied. Plaintiff contends, however, that the notice of removal was still ineffective because it was required to have contained a "short and plain statement of the grounds for removal" and failed to explain Anderson's absence therefrom by stating that he had not been served and thus did not need to join in the notice of removal.
"A defendant or defendants desiring to remove any civil action *** from a State court shall file in the district court of the United States for the district *** within which such action is pending a notice of removal *** containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
"The notice of removal of a civil action or proceeding shall be filed 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 proceeding 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 on the defendant, whichever period is shorter. **". 28 U.S.C. § 1446(a) and (b).
Plaintiff primarily relies on P.P. Farmers' Elevator Co. v. Elev. Mut. Ins., 395 F.2d 546 (7th Cir. 1968), for the proposition that the failure to address the absence of a co-defendant in the notice of removal renders such defective and requires that the case be remanded. However, this case is distinguishable for two reasons — viz., (1) it was decided in 1968 — i.e., before the 1988 amendment to 28 U.S.C. § 1446 which replaced the petition for removal with the notice of removal — and (2) the plaintiff therein asserted in its motion to remand that the defendant who did not join in the petition for removal had been served prior to removal. Farmers' Elevator, at 548. Furthermore, that court did not expressly hold that the failure to include a statement in the petition for removal that the non-removing co-defendant had not yet been served required remand, but merely stated that "`where the suit involves multiple defendants and one or more of the defendants does not join in the petition, better practice dictates that the petition expressly indicate why, e.g., that he is a nominal party or was not served at the time of filing the petition'" and, although the court did remand the case, the plaintiff had asserted that the non-removing defendant had been served prior to removal. Farmers' Elevator, at 548. The other case cited by plaintiff is Home Owners Funding Corp. of America v. Allison, 756 F. Supp. 290 (N.D. Tex. 1991). Therein, the court relied on Farmers' Elevator to conclude that the failure to explain the absence of a co-defendant in a notice of removal rendered such defective. Id. at 291. However, while the court in Home Owners remanded the case, not only had the non-removing defendant been served prior to the notice of removal but, in addition, the notice of removal had failed to properly allege that the court had diversity jurisdiction. Id. at 291.
Pub.L. No. 100-702 § 1016(b) (1988).
Internal citations omitted.
In the present case, Anderson, unlike the defendants in Farmers' Elevator and Home Owners, had not been served with process prior to the notice of removal. This exact issue — i.e., "whether the failure of the removing Defendant[s], to include in the Notice of Removal some recitation that a co-Defendant had not been served with the Plaintiff's Complaint, renders the Notice so procedurally defective as to warrant a remand of the action to State Court" — was addressed by the United States District Court for the District of Minnesota and was answered in the negative. Casey's General Stores, Inc. v. Cotton Construction, Civ. No. 5-95-154, 1995 WL 62979 at *2 (D. Minn. Oct. 6, 1995). There is a "national trend" towards allowing amendments of notices of removal to remedy technical as opposed to substantial defects. Jones v. Kremer, 28 F. Supp.2d 1112, 1113 (D. Minn. 1998). A technical defect is a failure to allege a fact that existed and was known to the parties at the time of removal, such as that a particular defendant had not yet been served or was a nominal party, whereas a substantial defect is the lack of a required element, such as the consent of a necessary defendant at the time of removal which is not obtained until after removal. Id. at 1113-1114. Furthermore the Seventh Circuit Court of Appeals, which had decided Farmers' Elevator, later held that, although a notice of removal that fails to explain the absence of a named defendant is "plainly sloppy" and technically defective, it does not defeat jurisdiction and will not require remand if the absence of such defendant from the notice of removal is justified in a belated affidavit. Shaw v. Dow Brands, Inc., 994 F.2d 364, 368-369 (7th Cir. 1993) (absent defendant had not yet been served at time of removal).
This Court has previously held that the failure to include in the notice of removal a statement that a defendant who had not joined in the notice of removal was not necessary thereto because it was a nominal defendant, did not render the notice of removal defective and declined to remand the case. Jamestown Plastics, Inc. v. Travelers Indemnity Co., No. 97-CV-0373E(M), 1997 WL 800870 at *2 (W.D.N.Y Dec. 30, 1997). The Supreme Court has held that the time for removing an action does not begin until formal service has been made on the removing defendant. Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 348 (1999). Anderson was not served until March 11, 2001 and he stated on March 22 that he consented to the removal — i.e., well within thirty days of having been served. T0 the extent that the Catalyst defendants' notice of removal was technically defective due to their failure to include a statement that Anderson was not required to join in the notice of removal because he had not yet been served, such has already been corrected by the filing of Anderson's timely consent to removal and, when read in conjunction therewith, the notice of removal is sufficient.
The filing of an amended notice of removal to state that Anderson had not yet been served at the time of the original notice of removal and now consents to such would be superfluous and is unnecessary in light of Rodgers' March 22, 2001 Affidavit. See Casey's General Stores, at *4 (citing cases).
Accordingly, it is hereby ORDERED that plaintiff's motion to remand is denied.