Pietrangelo v. Alvas Corp.
2012 U.S. App. LEXIS 13972
2d Cir.2012Background
- Pietrangelo filed his complaint in Vermont state court on July 31, 2008.
- Attorney General Sorrell waived service on August 21, 2008; other defendants did not.
- Alvas Defendants and City Defendants were served on Feb. 24–25, 2009.
- City Defendants filed a notice of removal on March 16, 2009, claiming others would consent.
- Alvas Defendants and Sorrell submitted letters consenting to removal on March 17 and March 24, 2009, but were noncompliant with Local Rule 5.1.
- Letters of consent were later accepted as timely on April 1 and April 3, 2009, respectively, and removal proceeded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the later-served rule applies pre-amendment § 1446(b). | Pietrangelo argues first-served rule governs. | City Defendants argue later-served rule should apply. | Later-served rule adopted; timely removal. |
| Whether City Defendants filed timely removal within 30 days after service. | Removal untimely under first-served rule. | Removal timely under later-served rule. | City Defendants' notice timely. |
| Whether remaining defendants' consent to removal was timely. | Consent was untimely. | Reached via unanimous consent within 30 days. | Consent timely; unanimity satisfied. |
Key Cases Cited
- Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011) (adopts later-served rule for § 1446(b))
- Delalla v. Hanover Ins., 660 F.3d 180 (3d Cir. 2011) (endorses later-served rule; pre-amendment interpretation)
- Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202 (11th Cir. 2008) (supports later-served rule in removal timing)
- Marano Enters. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753 (8th Cir. 2001) (early guidance on severability of removal timing)
- Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999) (early support for flexible removal timing rules)
- Barbour v. Int’l Union, 640 F.3d 599 (4th Cir. 2011) (en banc discussion of first-served vs later-served rule)
- Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254 (5th Cir. 1988) (preference for broader interpretation of removal timing)
- Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (thirty-day period begins on formal service)