In an opinion issued yesterday, Judge Seibel rejected a plaintiff’s argument that a defendant in a multi-defendant case must consent to removal within 30 days of service on its statutory agent, regardless of when the defendant actually received the complaint. The case was filed in New York state court against two defendants, one of whom timely removed the action. The second defendant consented to removal of the action four days after receiving the complaint from its agent for service of process, but more than 30 days after plaintiff had served the complaint on the defendant’s statutory agent (the Secretary of State). The plaintiff moved to remand, arguing that defendant’s consent to removal was late because it occurred more than thirty days after plaintiff had served the Secretary of State.
The plaintiff argued that the Second Circuit’s holding that the removal clock does not start running upon service of a statutory agent was inapplicable to cases involving the rule of unanimity, codified at 28 U.S.C. § 1446(b)(2)(A), which requires that “all defendants who have been properly joined and served must join in or consent to the removal of the action.” According to the plaintiff, “application of cases holding that service on the Secretary of State does not start the thirty-day removal clock improperly ‘conflates’ the rule of unanimity with provisions setting out the thirty-day removal period.”
In rejecting the plaintiff’s argument, Judge Seibel found that:
[W]hile it is true that “each defendant who has been served with process at the time the removal petition is filed ‘must independently express . . . consent to removal’ by submitting ‘written consent unambiguously agreeing to removal,’” (P’s Mem. at 3) (quoting Metro. Transp. Auth. v. U.S. Fid. & Guar. Co., No. 14-CV-9059, 2015 WL 1730067, at *4 (S.D.N.Y. Apr. 14, 2015) (emphasis in original)), the statute does not state that such consent must be expressed within thirty days of the date on which a defendant is “properly joined and served.” In other words, the rule of unanimity, as codified at § 1446(b)(2)(A), tells us who must consent to removal, but it does not tell us when those parties must consent.
The “when” question must be answered by reference to other provisions in § 1446(b). Within § 1446(b), only two provisions include an express thirty-day time limit: § 1446(b)(1) (requiring removal within thirty days of receipt through service or otherwise) and § 1446(b)(2)(B) (giving each defendant in a multiple-defendant case thirty days from “service . . . or receipt” to remove the case). . . . Thus, the thirty-day period for consent is not tied to the “joined and served” language in § 1446(b)(2)(A), but rather to the language in § 1446(b)(1) providing for removal “within 30 days after the receipt by the defendant, through service or otherwise” of the summons and complaint and the language in § 1446(b)(2)(B) giving each defendant thirty days from “receipt . . . or service” to remove.
Judge Seibel found that the defendant timely filed its consent to removal, because it was filed within 30 days of receipt of service. Judge Seibel noted that plaintiff’s argument was “illogical, particularly because the reason the thirty-day limit in § 1446(b)(1) runs from receipt is that a defendant’s time to act might expire before that defendant even knows it is part of the lawsuit.”