Amparo v. The City of Yonkers
- Philip Halpern
- 7:21-cv-02672
- U.S. District Court · Southern District of New York
- 4
In Amparo v. Yonkers, Judge Halpern remanded the case because the removing defendant did not show that all defendants consented within 30 days.
The ruling returned Max Amparo’s action against Westchester County Department of Correction, the City of Yonkers, the named police officers and detective, and Correction Officers John Does 1–5 to New York state court; it did not resolve the underlying claims.
What happened
In Max Amparo v. The City of Yonkers, Westchester County Department of Correction removed the case from New York state court to federal court. Amparo asked the federal court to send it back.
The court found that the notice of removal did not include the Yonkers Defendants’ written consent. Although the removing defendant said the City’s counsel had communicated consent, none of the Yonkers Defendants appeared in federal court or gave the court written consent within the required 30-day period.
Judge Philip M. Halpern granted Amparo’s motion to remand and remanded the case to the state court from which it was removed. The court closed the federal case and canceled the scheduled conferences.
The detailed version
- Amparo v. The City of Yonkers · No. 7:21-cv-02672
- Philip Halpern
- May 10, 2021
Background
Max Amparo brought the action in the Supreme Court of the State of New York, County of Westchester, against Westchester County Department of Correction, the City of Yonkers, several named police officers and a detective, and Correction Officers John Does 1–5. The state-court complaint was later amended. Westchester County Department of Correction removed the action to the U.S. District Court for the Southern District of New York under the federal removal statutes.
Amparo moved to remand, meaning to return the action to state court. The removing defendant opposed the motion by stating that Corporation Counsel for the City of Yonkers had communicated consent to removal.
Court’s analysis
The court explained that when multiple defendants are sued, all properly joined and served defendants must consent to removal within the 30-day statutory period. In the Second Circuit, each non-removing defendant must independently provide written consent that unambiguously agrees to removal. Merely telling the removing defendant that it consents, without providing that consent to the court, is not enough. The party seeking removal bears the burden of showing that removal was proper, and doubts are resolved against removal.
The record showed that the defendants were served on or about March 9, 2021, making April 8, 2021 the end of the 30-day removal period. The notice of removal was not signed by the Yonkers Defendants and did not state that they consented. None of those defendants appeared in the federal action or provided the court with written consent. The court therefore found that the removing defendant had not met its burden of establishing that removal was proper.
Ruling
The court granted Amparo’s motion to remand and remanded the action to the state court from which it had been removed. The Clerk was directed to terminate the motion, send the order to the state court, and close the federal case. Scheduled conferences were canceled. The order addressed the removal procedure and did not decide the underlying claims.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.