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.”
Continue Reading Judge Seibel: Service on Secretary of State Does Not Trigger Clock for Consent to Removal in Multi-Defendant Case