     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.



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