Fields v. TRA DAM Trucking LLC

Background

TRA DAM Trucking LLC filed a notice removing this action from the Supreme Court of New York, County of New York, to the U.S. District Court for the Southern District of New York. The federal court determined that the removal did not satisfy basic statutory requirements.

Removal defects

The court identified two principal defects. First, TRA DAM Trucking LLC did not include a copy of the complaint with its notice of removal, as required by 28 U.S.C. § 1446(b). Second, Defendant Zulyaka Marrero had not expressed consent to removal. Under 28 U.S.C. § 1446(b)(2)(A), a properly served defendant generally must consent to removal, and the court explained that late consent cannot cure the failure to provide timely consent.

The court gave TRA DAM Trucking LLC an opportunity to argue that Marrero had not been properly joined and served, which could have addressed the consent issue. TRA DAM Trucking LLC did not make that argument. Because the required state-court filings were not included in the removal notice, the court also had no basis to conclude that Marrero had not been properly joined and served.

Proceedings and ruling

After the court issued an order requiring an explanation of the removal defects, defense counsel filed a declaration stating only that the parties were diverse and that more than $75,000 was at stake. The court found that response did not address the identified problems and issued a second order requiring counsel to explain why sanctions should not be imposed. Counsel then asked for clarification, while Fields filed a declaration supporting remand.

Judge Mary Kay Vyskocil ordered that the case be remanded to the Supreme Court of New York, County of New York. The clerk was requested to remand and close the federal case. The opinion addresses the removal procedure and does not decide the underlying claims.