Cole v. The City Of New York

Background

Peter Anthony Cole filed the action in New York State Supreme Court, New York County, against the City of New York, the New York City Department of Transportation, the New York City Department of Environmental Protection, the New York State Urban Development Corporation doing business as Empire State Development, the Dormitory Authority of the State of New York, and the National Railroad Passenger Corporation doing business as Amtrak.

The defendants were served between August 8 and August 15, 2019. On September 9, 2019, Amtrak removed the case to the Southern District of New York under 28 U.S.C. § 1441. The federal court’s jurisdiction was based on federal-law provisions concerning Amtrak. Cole then moved to remand, meaning to return the case to state court.

Arguments

Cole argued that removal was improper because the defendants had not unanimously consented to removal. Amtrak argued that an email from counsel for the Dormitory Authority consenting for that entity and Empire State Development was sufficient. Amtrak also argued that the City’s consent was unnecessary because the City was only a nominal party and had not appeared in the state case. Amtrak further argued that the New York City agencies had been incorrectly named as defendants.

Court’s analysis

When a case is removed under § 1441(a), all properly joined and served defendants must join in or consent to removal. The court described this as the rule of unanimity. The court explained that recognized exceptions apply when a defendant was not served when removal occurred, is merely a nominal or formal party, or is not subject to the removed claim because it is separate and independent.

The court held that the email concerning the Dormitory Authority and Empire State Development did not satisfy the consent requirement. It was sent to Amtrak rather than to the court, and it did not purport to be signed by Empire State Development. The court also noted that the City’s later attempt to join Amtrak’s opposition did not require a decision about whether a later filing could cure a removal defect, because Empire State Development had not joined the opposition.

Although the court agreed that the New York City Department of Transportation and the New York City Department of Environmental Protection could not be sued in their own names, it held that Amtrak still had to obtain the City’s consent. Amtrak did not prove that the City was a nominal party. The evidence it submitted addressed ownership of only one of the two properties identified in Cole’s allegations, and Cole’s claims involved more than ownership. They also alleged that the City, through its agents, employees, or servants, operated, managed, maintained, controlled, supervised, repaired, inspected, used, constructed, renovated, repaired, and designed the properties. The City’s alleged interest was also supported by Amtrak’s three cross-claims against it. All defendants had been served before removal, so the City’s lack of an earlier appearance did not excuse the missing consent.

Ruling and disposition

The court granted Cole’s motion to remand. It directed the Clerk to remand the case to New York State Supreme Court, New York County, close all pending motions, and close the federal case. The opinion addressed the removal procedure and did not decide the underlying claims.