Removal: Okolie v. Trans Union

David A. Szwak

Removal: Okolie v. Trans Union

Postby David A. Szwak » Thu Jan 26, 2006 7:37 pm

Not Reported in F.Supp.2d, 1999 WL 458165 (E.D.N.Y.)

United States District Court, E.D. New York.
Cyril OKOLIE, Plaintiff,
No. 99-CV-2687 (JG).
June 30, 1999.


*1 Cyril Okolie, plaintiff pro se, brought this action against Trans Union LLC ("TU") in Queens County Civil Court. TU subsequently removed the case to this Court. Plaintiff now requests an order for remand back to state court. Oral argument occurred June 25, 1999. For the reasons set forth below, plaintiff's motion is denied.

Plaintiff filed this action on March 25, 1999, seeking damages for a violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., breach of contract, defamation, slander, "damage to person," "loss of loan," and negligence, as well as punitive damages and expenses, totaling $115,000. On April 12, 1999, TU was served with the complaint. TU removed the case, pursuant to 28 U.S.C. § 1441, on May 12, 1999. A day earlier, May 11, 1999, Timothy Creech, one of defendant's attorneys, sent a copy of TU's petition for removal via regular mail to plaintiff at the address in Flushing that he listed on his complaint. Plaintiff claims that he never received this copy.
On May 25, 1999, Creech sent to plaintiff at the same address, via certified mail, the state court notice of removal, which included another copy of the petition for removal, defendant's answer to the complaint, interrogatories, and a request for production of documents. Plaintiff received this mailing on June 2, 1999. He states that the mailing did not include a copy of defendant's petition for removal, but in Exhibit A attached to his motion for remand, plaintiff included a copy of defendant's petition. On June 7, 1999, plaintiff filed this motion for remand, claiming that defendant failed to appear and answer his complaint as required by N.Y. C.P.L.R. § 321(a), and that defendant failed to serve him with its petition for removal within the required time.

A. Federal Jurisdiction
During the hearing on this motion, plaintiff argued that this action was not removable to federal court because it contains state law claims. The statute governing removal, 28 U.S.C. § 1441, provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ... to the district court of the United States." 28 U.S.C. § 1441(a). Because plaintiff expressly alleges a violation of the Fair Credit Reporting Act in his complaint, this Court has original jurisdiction over that claim regardless of the amount in controversy. See Fair Credit Reporting Act, 15 U.S.C. § 1681p. Moreover, under 28 U.S.C. § 1367(a), "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related in the action within such original jurisdiction that they form part of the same case or controversy." Because I find that the federal and state claims in this case share a "common nucleus of operative facts," United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966), this Court retains jurisdiction over the entire matter. See Polygram Merchandising, Inc. v. New York Wholesale Co., No. 97 Civ. 6489, 1999 WL 4957, at *3 (S.D.N.Y. Jan. 6, 1999) (citing Cushing v. Moore, 970 F.2d 1103, 1110 (2d Cir.1992)).
B. Removal Procedures
*2 Plaintiff next contends that, whether or not this case was removable, defendant failed to follow the proper procedures in removing it. The statute governing procedures for removal provides that a defendant desiring to remove any action from state court "shall file in the district court of the United States for the district and division within which such action is pending a notice of removal" that contains "a short and plain statement of the grounds for removal." 28 U.S.C. § 1446(a). It further specifies that the notice of removal "shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading." 28 U.S.C. § 1446(b). In this case, defendant received a copy of the complaint on April 12, 1999. It filed its petition for removal on May 12, 1999. Defendant thus complied with the statute's thirty-day requirement for filing.
Plaintiff claims, however, that he did not receive notice of defendant's petition for removal "within the required time." According to the removal statute, "[p]romptly after the filing of such notice of removal of a civil action the defendant ... shall give written notice thereof to all adverse parties." 28 U.S.C. § 1446(d). Nowhere does the statute specify a precise time frame within which the defendant must provide notice of removal to the plaintiff, other than "promptly" after filing the notice. Timothy Creech states in his affidavit that he mailed defendant's petition for removal to plaintiff on May 11, 1999, one day before defendant filed it. Plaintiff states that he never received that mailing. He concedes, however, that on June 2, 1999, he received a copy of the state court notice of removal, which included the petition for removal, along with discovery requests.
Plaintiff has not shown, nor does he even contend, that he was in any way prejudiced by a delay in receiving the notice of removal. Consequently, assuming (without deciding) that defendant did not provide plaintiff with notice of the petition for removal "promptly" after filing it, plaintiff suffered no prejudice as a result of the alleged delay. Any delay, therefore, does not justify remanding the case to state court. See Gay v. Carlson, No. 89 CIV 4757, 1990 WL 20172, at *2 (S.D.N.Y. Feb. 23, 1990); Sicinski v. Reliance Funding Corp., 461 F.Supp. 649, 652 (S.D.N .Y.1978).
Plaintiff also argues that defendant failed to appear and answer his complaint within thirty days of his filing it, as required by N.Y. C.P.L.R. § 321(a). Federal Rule of Civil Procedure 81(c), however, governs removed actions in which the defendant has not answered. The Rule provides that, in such actions,
the defendant shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based, or within 20 days after the service of summons upon such initial pleading, then filed, or within 5 days after the filing of the petition for removal, whichever period is longest.
*3 Fed.R.Civ.P. 81(c). Here the last time period, within five days after filing the petition for removal, is the longest and would therefore apply. Defendant filed its petition for removal on May 12, 1999, but did not answer the complaint until approximately May 25, 1999, more than five business days after filing the petition. Defendant thus appears not to have met Rule 81(c)'s requirement for filing an answer. A defendant's failure to file a timely answer, however, does not entitle the plaintiff to a remand. See Sicinski, 461 F.Supp. at 652; 32A Am.Jur.2d Federal Courts § 1698 (1995).

For the foregoing reasons, plaintiff's motion to remand is denied.
So Ordered.
Okolie v. Trans Union LLC
Not Reported in F.Supp.2d, 1999 WL 458165 (E.D.N.Y.)

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