Pietrangelo v. Alvas Corp.

11-189-cv
Pietrangelo v. Alvas Corp.
1
2 UNITED STATES COURT OF APPEALS
3
4 FOR THE SECOND CIRCUIT
5
6
7
8 August Term, 2011
9
10 (Submitted: February 10, 2012 Decided: July 9, 2012)
11
12 Docket No. 11-189-cv
13
14
15 JAMES E. PIETRANGELO, II,
16
17 Plaintiff-Appellant,
18
19 –v.–
20
21 ALVAS CORPORATION, DBA PINE STREET DELI, GEORGE ALVANOS, CHRISTINE
22 ALVANOS, EVAN ALVANOS, JOHN DOE, CITY OF BURLINGTON, EMMETT B. HELRICH,
23 in his personal and official capacities, WADE LABRECQUE, in
24 his personal and official capacities, WILLIAM SORRELL, in his
25 official capacity,
26
27 Defendants-Appellees.*
28
29
30
31 Before:
32 WESLEY, CARNEY, Circuit Judges, and MAUSKOPF, District Judge.**
33
34 Appeal from a judgment of the United States District
35 Court for the District of Vermont (Reiss, J.), dismissing
36 all of Plaintiff’s federal and state law claims brought
37 against Defendants. Plaintiff filed his complaint in
*
The Clerk of Court is respectfully instructed to amend the
caption as set forth above.
**
The Honorable Roslynn R. Mauskopf, of the United States
District Court for the Eastern District of New York, sitting by
designation.
1 Vermont state court, and Defendants removed the action to
2 federal district court. Plaintiff contends that the
3 district court erred in denying his motion to remand to
4 state court because Defendants’ notice of removal and
5 consent thereto were untimely under 28 U.S.C. § 1446(b). We
6 conclude that the thirty-day removal period began to run
7 when the City Defendants received service, and not when the
8 first-served defendant received service. Accordingly, the
9 City Defendants’ notice and the remaining Defendants’
10 subsequent consent to removal were timely.
11
12 AFFIRMED.
13
14
15
16 James E. Pietrangelo, II, pro se, Avon, OH, for
17 Plaintiff-Appellant.
18
19 Robin Ober Cooley, Pierson Wadhams Quinn Yates &
20 Coffrin, Burlington, VT, for Defendants-
21 Appellees Alvas Corporation, DBA Pine Street
22 Deli, George Alvanos, Christine Alvanos, Evan
23 Alvanos.
24
25 Pietro J. Lynn, Lynn, Lynn & Blackman, P.C.,
26 Burlington, VT, for Defendants-Appellees City
27 of Burlington, Emmett B. Helrich, Wade
28 Labrecque.
29
30 David R. Groff, Assistant Attorney General, for
31 William H. Sorrell, Attorney General of the
32 State of Vermont, Montpelier, VT, for
33 Defendant-Appellee William H. Sorrell.
34
35
36
37 PER CURIAM:
38 Plaintiff-Appellant James E. Pietrangelo, II,1 appeals
39 from a December 15, 2010 judgment of the United States
1
We note, as the district court recognized, that Pietrangelo
is an attorney with substantial litigation experience. Thus he
“cannot claim the special consideration which the courts
customarily grant to pro se parties.” Holtz v. Rockefeller &
Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (internal quotation marks
omitted).
2
1 District Court for the District of Vermont (Reiss, J.),
2 granting Defendants’ motions for summary judgment and
3 dismissing all of Pietrangelo’s federal and state law claims
4 brought against Defendants. Pietrangelo filed his complaint
5 in Vermont state court, and Defendants removed the action to
6 federal district court pursuant to 28 U.S.C. § 1441.
7 Pietrangelo contends that the district court erred in
8 denying his motion to remand to state court because, by his
9 calculation, Defendants’ notice of removal and consent
10 thereto were untimely under 28 U.S.C. § 1446(b).
11 Specifically, he argues that the thirty-day removal period
12 began when service was effected on the first defendant,
13 Attorney General William H. Sorrell, and that later-served
14 defendants were untimely when they filed their notice of
15 removal well beyond that time. We disagree and conclude
16 that Defendants City of Burlington, Emmett B. Helrich, and
17 Wade Labrecque (the “City Defendants”) timely filed their
18 notice of removal because their filing occurred within
19 thirty days from when they received service and that all
20 earlier-served defendants properly consented to removal.
21 Accordingly, we affirm the denial of Pietrangelo’s motion to
22 remand the action to state court.2
2
We also conclude in a separate Summary Order that the
district court did not err in (1) denying Pietrangelo’s motion to
3
1 We recite only the limited procedural history relevant
2 to our discussion. Pietrangelo filed his complaint in state
3 court on July 31, 2008. Attorney General Sorrell waived
4 service of process on August 21, 2008. However, the
5 remaining defendants—Alvas Corporation, George Alvanos,
6 Christine Alvanos, and Evan Alvanos (the “Alvas Defendants”)
7 and the City Defendants—did not waive service of process.
8 On February 24, 2009, Pietrangelo served the Alvas
9 Defendants with a summons and complaint. On February 24 and
10 25, 2009, Pietrangelo served the City Defendants.
11 On March 16, 2009, the City Defendants filed a notice
12 of removal, in which counsel for the City Defendants
13 represented that the other defendants had consented to
14 removal and would formally notify the court of their
15 consent. On March 17, 2009 and March 24, 2009,
16 respectively, the Alvas Defendants and Attorney General
17 Sorrell submitted letters to the district court confirming
18 their consent to the City Defendants’ removal motion. The
19 Clerk’s Office, however, returned each letter for failing to
20 comply with the format requirements of Local Rule 5.1. The
21 Alvas Defendants and Attorney General Sorrell then
compel discovery and for leave to conduct additional discovery;
(2) granting Defendants’ summary judgment motions; and (3)
denying Pietrangelo’s motion for reconsideration of a decision
granting summary judgment to certain defendants.
4
1 reiterated their consent to the City Defendants’ removal in
2 submissions that were accepted by the court on April 1, 2009
3 and April 3, 2009, respectively.
4 On April 3, 2009, Pietrangelo filed a motion to remand
5 his action to state court; the district court denied the
6 motion on October 7, 2009. We review a district court’s
7 denial of a motion to remand de novo. Whitaker v. Am.
8 Telecasting, Inc., 261 F.3d 196, 201 (2d Cir. 2001).
9 The statute in question, 28 U.S.C. § 1446(b), requires
10 a defendant seeking to remove an action from state to
11 federal court to file a notice of removal within thirty days
12 of receiving service of the initial pleading. The City
13 Defendants filed a notice of removal less than thirty days
14 after they were served with the complaint. Pietrangelo
15 contends that the notice was untimely, however, because it
16 was filed nearly seven months after the first defendant
17 waived service of process, an equivalent (for purposes of
18 § 1446(b)) to receiving service. Thus we must decide an
19 issue over which several circuits have disagreed prior to
20 the December 7, 2011 amendment of § 1446: “Does the first-
21 served defendant’s thirty-day clock run for all subsequently
22 served defendants (the first-served rule), or does each
5
1 defendant get his own thirty days to remove after being
2 served (the later-served rule)?” Destfino v. Reiswig, 630
3 F.3d 952, 955 (9th Cir. 2011).
4 Had this case originated after December 7, 2011, when
5 § 1446 was amended, the City Defendants’ notice of removal
6 would indisputably have been timely–the current statute
7 codifies the later-served rule. See 28 U.S.C. § 1446(b).3
8 In construing the thirty-day period of the pre-amendment
9 § 1446(b), the majority of the circuits have adopted the
10 later-served rule. See, e.g., Delalla v. Hanover Ins., 660
11 F.3d 180, 189 (3d Cir. 2011); Destfino, 630 F.3d at 956;
12 Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1209
3
28 U.S.C § 1446(b) was amended in relevant part by adding
paragraph 2:
(2)(A) When a civil action is removed solely under
section 1441(a), all defendants who have been properly
joined and served must join in or consent to the removal
of the action.
(B) Each defendant shall have 30 days after receipt by or
service on that defendant of the initial pleading or
summons described in paragraph (1) to file the notice of
removal.
(C) If defendants are served at different times, and a
later-served defendant files a notice of removal, any
earlier-served defendant may consent to the removal even
though that earlier-served defendant did not previously
initiate or consent to removal.
Pub. L. No. 112-63, § 103(b)(3)(B), 125 Stat. 760, 762 (2011)
(codified as amended at 28 U.S.C. § 1446(b)) (emphasis added).
6
1 (11th Cir. 2008); Marano Enters. of Kan. v. Z-Teca Rests.,
2 L.P., 254 F.3d 753, 756-57 (8th Cir. 2001); Brierly v.
3 Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th
4 Cir. 1999). Two circuits have adopted variations of the
5 first-served rule. See Barbour v. Int’l Union, 640 F.3d
6 599, 613 (4th Cir. 2011) (en banc); Getty Oil Corp. v. Ins.
7 Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir. 1988).
8 We agree with the majority of our sister circuits and
9 adopt the later-served rule “for reasons grounded in
10 statutory construction, equity and common sense.” Destfino,
11 630 F.3d at 955. It would appear that Congress addressed
12 the shortcomings of the statute that necessitated judicial
13 stitchery. In addition, we agree with the thorough
14 reasoning of those circuits that share our view.
15 The plain text of the statute supports the later-served
16 rule because “[g]iven that § 1446(a) explicitly affirms the
17 possibility of multiple notices of removal, the only
18 reasonable reading of § 1446(b) is that the subsection
19 applies individually to each notice of removal that might
20 potentially be filed by each removing ‘defendant.’”4
4
We read the phrase “defendant or defendants” in § 1446(a)
to indicate that multiple defendants may attempt to remove an
action by filing a notice of removal. See Delalla, 660 F.3d at
186.
7
1 Delalla, 660 F.3d at 186. Moreover, § 1446(b) omits any
2 reference to “first defendant” or “initial defendant.” See
3 id. at 187; Destfino, 630 F.3d at 955. We also agree that
4 the later-served rule is more equitable, as “[a] contrary
5 rule could deprive some defendants of their right to a
6 federal forum because they were served too late to exercise
7 that right, and encourage plaintiffs to engage in unfair
8 manipulation by delaying service on defendants most likely
9 to remove.” Destfino, 630 F.3d at 955-56.
10 Finally, we reject the rationale for adopting the
11 first-served rule for substantially the same reasons stated
12 by the Third and Ninth Circuits. See Delalla, 660 F.3d at
13 187-89; Destfino, 630 F.3d at 956. Most notably, the last-
14 served rule is not inconsistent with the requirement that
15 defendants unanimously join in a removal notice because we
16 do not construe a defendant’s failure to file a notice of
17 removal as an affirmative decision not to join another
18 defendant’s removal request in the future. See Delalla, 660
19 F.3d at 188; Destfino, 630 F.3d at 956. Moreover, we agree
20 that the Supreme Court’s holding in Murphy Bros., Inc. v.
21 Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48
22 (1999)—that the thirty-day removal period begins upon formal
8
1 service of process—“cuts against binding later-served
2 defendants to decisions made before they were joined.”5
3 Destfino, 630 F.3d at 956.
4 For the purpose of applying the pre-amended removal
5 statute, we adopt the later-served rule and hold that each
6 defendant has thirty days from when he received service to
7 file a notice of removal. Accordingly, the City Defendants’
8 notice of removal was timely.
9 Pietrangelo also contends that even under the later-
10 served rule, the remaining Defendants’ consent to removal
11 was untimely. We disagree for substantially the same
12 reasons stated by the district court in its October 7, 2009
13 Opinion and Order. The pre-amendment § 1446(b) speaks only
14 of the “requirements for filing a notice of removal; it does
15 not speak to joinder in another defendant’s notice of
16 removal.”6 Delalla, 660 F.3d at 188. District courts
17 within this Circuit, however, have consistently interpreted
5
Since Murphy Brothers, district courts in this Circuit
have generally applied the later-served rule. See, e.g.,
Barnhart v. Federated Dep’t Stores, Inc., No. 04 Civ. 3668, 2005
WL 549712, at *6 (S.D.N.Y. Mar. 8, 2005); Fernandez v. Hale
Trailer Brake & Wheel, 332 F. Supp. 2d 621, 622-24 (S.D.N.Y.
2004); Piacente v. State Univ. of N.Y. at Buffalo, 362 F. Supp.
2d 383, 390 (W.D.N.Y. 2004); Varela v. Flintlock Constr., Inc.,
148 F. Supp. 2d 297, 300 (S.D.N.Y. 2001).
6
We recognize that the current version of § 1446(b) does
address joinder and consent to removal. See supra note 3.
Accordingly, we note that our discussion here pertains only to
the pre-amendment statute.
9
1 the statute “as requiring that all defendants consent to
2 removal within the statutory thirty-day period, a
3 requirement known as the ‘rule of unanimity.’” Beatie &
4 Osborn LLP v. Patriot Scientific Corp., 431 F. Supp. 2d 367,
5 383 (S.D.N.Y. 2006). Although we have not yet advised what
6 form a consent to removal must take, we agree with the
7 district court that the remaining defendants must
8 independently express their consent to removal. See
9 Ricciardi v. Kone, Inc., 215 F.R.D. 455, 458 (E.D.N.Y.
10 2003); Codapro Corp. v. Wilson, 997 F. Supp. 322, 325
11 (E.D.N.Y. 1998). We conclude that the Alvas Defendants and
12 Attorney General Sorrell satisfied this requirement when
13 they submitted letters to the court within the thirty-day
14 removal period. Moreover, we find no error in the district
15 court’s decision to consider those letters of consent timely
16 despite their noncompliance with the format requirements of
17 Local Rule 5.1. See Contino v. United States, 535 F.3d 124,
18 126-27 (2d Cir. 2008).
19 We have considered Pietrangelo’s remaining arguments
20 pertaining to the denial of his motion to remand and find
21 them to be without merit. For the foregoing reasons, and
22 the reasons set forth in the Summary Order accompanying this
23 Opinion, the judgment of the district court is hereby
24 AFFIRMED.
10