C.Q. v. Estate of David Rockefeller

Background

C.Q. filed a summons and verified complaint in the Supreme Court of New York, New York County, on February 21, 2020. The complaint named the Estate of David Rockefeller, David Rockefeller, Jr., Margaret Dulany Rockefeller, Abigail Aldrich Rockefeller, Neva Rockefeller Goodwin, and Eileen Rockefeller Growald as defendants.

Abigail Aldrich Rockefeller and Eileen Rockefeller Growald removed the case to the U.S. District Court for the Southern District of New York on March 11, 2020, relying on diversity jurisdiction, which allows certain cases between citizens of different states to be heard in federal court. On March 12, C.Q. filed proof that Dulany had been served under New York’s substituted-service rule. That rule permits service by leaving papers with a suitable person and mailing a copy, but provides that service becomes complete ten days after proof of service is filed.

C.Q. moved to remand, meaning to return the case to state court. C.Q. argued that Dulany was a New York citizen, so the forum-defendant rule barred removal, and that the defendants had not obtained all required consents to removal under the rule of unanimity. Dulany later filed a letter consenting to removal on April 10, 2020.

Court’s Analysis

The forum-defendant rule generally prevents removal based solely on diversity jurisdiction when a defendant who is a citizen of the state where the lawsuit was filed has been properly joined and served. The rule of unanimity generally requires all defendants who have been properly joined and served to consent to removal.

The court relied on the Second Circuit’s decision in Gibbons v. Bristol-Myers Squibb Co., which held that the phrase properly joined and served incorporates state service-of-process law. Applying New York Civil Practice Law and Rules § 308(2), the court concluded that service on Dulany was not complete until ten days after C.Q. filed the proof of service. Because the defendants removed the case before that period ended, Dulany had not been properly joined and served at the time of removal.

The court applied the same interpretation to the identical phrase in the federal removal statute governing the rule of unanimity. It therefore concluded that Dulany’s status at the time of removal excused the defendants from both the forum-defendant rule and the requirement that she consent to removal.

Ruling

Judge Vernon S. Broderick DENIED C.Q.’s motion to remand. The court also stated that, consistent with an earlier order, the defendants were required to respond to the complaint within forty-five days, and it directed the Clerk of Court to close the motion.