Gordon v. Stop & Shop Supermarkets Inc.

Background

Ouida Gordon brought a New York state-court action against Stop & Shop Supermarkets Inc. seeking damages from a slip-and-fall accident. Stop & Shop removed the case to the U.S. District Court for the Southern District of New York based on diversity jurisdiction, which allows a federal court to hear certain disputes involving citizens of different states when the amount in controversy exceeds $75,000.

Gordon served a Bill of Particulars on October 24, 2019, stating that the damages from her injuries exceeded $75,000. Stop & Shop filed a removal document on November 15, 2019—within 30 days of that filing—but titled it “Petition for Removal” instead of “Notice of Removal.” The Clerk’s Office instructed Stop & Shop to re-file the document under the proper title within five days. Stop & Shop did not do so, and the case was administratively closed on November 26, 2019. After Stop & Shop explained that a clerical error involving counsel’s email address prevented receipt of the Clerk’s notice, Chief Judge Colleen McMahon reopened the case and treated the removal notice as filed on November 15, 2019.

Gordon’s Motion

Gordon moved to remand, meaning to return the case to state court, on the ground that the removal was untimely. The court explained that federal law generally requires a defendant to file a removal notice within 30 days after the case becomes removable. The court also explained that this deadline is statutory but not jurisdictional, meaning that an untimely filing does not automatically prevent the court from excusing a departure from filing rules when fairness warrants it.

Court’s Analysis

The court held that the case became removable on October 24, 2019, when Gordon’s Bill of Particulars showed that the amount sought exceeded $75,000. Stop & Shop filed its removal document on November 15, 2019, within the 30-day period.

The court characterized the incorrect title as a technical rather than substantive defect. It found no evidence that Stop & Shop intentionally used the wrong title or deliberately refused to correct the filing. Instead, the court accepted that the failure resulted from a clerical error involving counsel’s email address. The court also concluded that refusing to excuse the defect would cause Stop & Shop to lose its statutory right to seek relief in federal court.

Disposition

The court excused the filing-title defect and deemed the removal timely. Judge George B. Daniels therefore denied Gordon’s motion to remand and directed the Clerk of Court to close the motion.