Pietrangelo v. Alvas Corp., No. 11-189 (2d Cir. 2012)
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Plaintiff sued the city and others in Vermont state court. Defendants removed to federal district court, which dismissed. The Second Circuit affirmed, rejecting an argument that notice of removal and consent thereto were untimely under 28 U.S.C. 1446(b). The thirty-day removal period began to run when the city defendants received service, and not when the first-served defendant received service.
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11-189-cv Pietrangelo v. Alvas Corp. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Submitted: February 10, 2012 Decided: July 9, 2012) Docket No. 11-189-cv JAMES E. PIETRANGELO, II, Plaintiff-Appellant, v. ALVAS CORPORATION, DBA PINE STREET DELI, GEORGE ALVANOS, CHRISTINE ALVANOS, EVAN ALVANOS, JOHN DOE, CITY OF BURLINGTON, EMMETT B. HELRICH, in his personal and official capacities, WADE LABRECQUE, in his personal and official capacities, WILLIAM SORRELL, in his official capacity, Defendants-Appellees.* Before: WESLEY, CARNEY, Circuit Judges, and MAUSKOPF, District Judge.** Appeal from a judgment of the United States District Court for the District of Vermont (Reiss, J.), dismissing all of Plaintiff s federal and state law claims brought 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Vermont state court, and Defendants removed the action to federal district court. Plaintiff contends that the district court erred in denying his motion to remand to state court because Defendants notice of removal and consent thereto were untimely under 28 U.S.C. § 1446(b). We conclude that the thirty-day removal period began to run when the City Defendants received service, and not when the first-served defendant received service. Accordingly, the City Defendants notice and the remaining Defendants subsequent consent to removal were timely. AFFIRMED. James E. Pietrangelo, II, pro se, Avon, OH, for Plaintiff-Appellant. Robin Ober Cooley, Pierson Wadhams Quinn Yates & Coffrin, Burlington, VT, for DefendantsAppellees Alvas Corporation, DBA Pine Street Deli, George Alvanos, Christine Alvanos, Evan Alvanos. Pietro J. Lynn, Lynn, Lynn & Blackman, P.C., Burlington, VT, for Defendants-Appellees City of Burlington, Emmett B. Helrich, Wade Labrecque. David R. Groff, Assistant Attorney General, for William H. Sorrell, Attorney General of the State of Vermont, Montpelier, VT, for Defendant-Appellee William H. Sorrell. PER CURIAM: Plaintiff-Appellant James E. Pietrangelo, II,1 appeals 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. 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 Pietrangelo filed his complaint 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. 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 disagree and conclude 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. 3 court on July 31, 2008. 4 service of process on August 21, 2008. 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. 10 11 Pietrangelo filed his complaint in state Attorney General Sorrell waived However, the On February 24 and 25, 2009, Pietrangelo served the City Defendants. 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. 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. 19 Clerk s Office, however, returned each letter for failing to 20 comply with the format requirements of Local Rule 5.1. 21 Alvas Defendants and Attorney General Sorrell then On March 17, 2009 and March 24, 2009, The The 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. 7 denial of a motion to remand de novo. 8 Telecasting, Inc., 261 F.3d 196, 201 (2d Cir. 2001). 9 We review a district court s Whitaker v. Am. 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. 13 Defendants filed a notice of removal less than thirty days 14 after they were served with the complaint. 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. 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 The City Pietrangelo Thus we must decide an 1 defendant get his own thirty days to remove after being 2 served (the later-served rule)? 3 F.3d 952, 955 (9th Cir. 2011). Destfino v. Reiswig, 630 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. 8 In construing the thirty-day period of the pre-amendment 9 § 1446(b), the majority of the circuits have adopted the See 28 U.S.C. § 1446(b).3 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). 5 first-served rule. 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 9 Two circuits have adopted variations of the See Barbour v. Int l Union, 640 F.3d We agree with the majority of our sister circuits and adopt the later-served rule for reasons grounded in 10 statutory construction, equity and common sense. 11 630 F.3d at 955. 12 the shortcomings of the statute that necessitated judicial 13 stitchery. 14 reasoning of those circuits that share our view. 15 Destfino, It would appear that Congress addressed In addition, we agree with the thorough 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. 3 id. at 187; Destfino, 630 F.3d at 955. 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. See We also agree that 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. 13 187-89; Destfino, 630 F.3d at 956. 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. 19 F.3d at 188; Destfino, 630 F.3d at 956. 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 See Delalla, 660 F.3d at Most notably, the last- See Delalla, 660 Moreover, we agree 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. 8 notice of removal was timely. 9 Accordingly, the City Defendants Pietrangelo also contends that even under the later- 10 served rule, the remaining Defendants consent to removal 11 was untimely. 12 reasons stated by the district court in its October 7, 2009 13 Opinion and Order. 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 17 within this Circuit, however, have consistently interpreted We disagree for substantially the same The pre-amendment § 1446(b) speaks only Delalla, 660 F.3d at 188. District courts 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. 4 Osborn LLP v. Patriot Scientific Corp., 431 F. Supp. 2d 367, 5 383 (S.D.N.Y. 2006). 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. 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). 12 Attorney General Sorrell satisfied this requirement when 13 they submitted letters to the court within the thirty-day 14 removal period. 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. 18 126-27 (2d Cir. 2008). Beatie & Although we have not yet advised what See We conclude that the Alvas Defendants and Moreover, we find no error in the district See Contino v. United States, 535 F.3d 124, 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. 22 the reasons set forth in the Summary Order accompanying this 23 Opinion, the judgment of the district court is hereby 24 AFFIRMED. For the foregoing reasons, and 10
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