Rositani v. Cochran

Background

Frank Rositani filed a personal-injury action against Michael A. Cochran in the Supreme Court of the State of New York, Bronx County. Rositani alleged that on January 21, 2020, he was walking west on Avenue of the Americas in New York City when Cochran negligently struck him with his car. The complaint asserted a cause of action under New York law but did not state the amount of damages sought.

Cochran served a supplemental demand seeking the amount in controversy. On August 17, 2020, Rositani’s counsel emailed Cochran’s counsel: “The Supplemental Demand is $250,000, by counsel.” On September 8, Rositani formally responded to the supplemental demand by filing a demand for $175,000 in damages. Cochran removed the case to federal court on October 6, 2020. Rositani’s counsel filed an affidavit opposing removal, which the court treated as a motion to remand, meaning a request to return the case to state court.

Issue

The court considered whether the August 17 email was an “other paper” under 28 U.S.C. § 1446(b)(3) from which Cochran could first determine that the case was removable. If it was, Cochran had 30 days from receiving the email to file the notice of removal.

Analysis

Under the removal statute, when the initial pleading does not make removability apparent, a defendant may remove within 30 days after receiving an amended pleading, motion, order, or other paper showing that the case is removable. The court explained that the 30-day filing requirement is mandatory and that courts strictly enforce it unless waiver or estoppel applies.

The court relied on the Second Circuit’s decision in a prior personal-injury case, which held that the removal period began when the plaintiff provided a paper explicitly stating the amount of monetary damages sought. Applying that reasoning, the court held that Rositani’s August 17 email qualified as an “other paper.” The email gave Cochran the information needed to ascertain removability, even though it was correspondence between counsel rather than a formally filed court document.

Because the removal clock began on August 17, Cochran’s October 6 removal was outside the 30-day period. The later formal response filed on September 8 did not restart or delay the deadline.

Disposition

The court granted Rositani’s motion to remand and directed the Clerk of Court to remand the case to the New York State Supreme Court, Bronx County. The opinion did not decide whether Cochran was liable for Rositani’s alleged injuries or otherwise resolve the personal-injury claim.