Silverman v. Citibank, N.A.

Background

Silverman filed the case in New York Supreme Court on June 1, 2022. His counsel emailed Citibank’s counsel the summons, a redacted complaint, an unredacted complaint, and other documents. The email asked whether Citibank’s counsel would accept service. Citibank’s counsel responded the next day that Citibank could accept service in exchange for 45 days to respond, and Silverman’s counsel replied, “deal.”

Citibank removed the case to federal court on June 21, 2022. It filed the redacted complaint with its notice of removal but did not file the unredacted complaint at that time. On July 5, 2022, Citibank filed the unredacted complaint under seal and sought permission to keep it sealed. Silverman then moved to remand, arguing that Citibank had failed to file the unredacted complaint within the 30-day period required by the removal statute.

Legal standard

Under 28 U.S.C. § 1446, a defendant removing a case must file copies of the process, pleadings, and orders served on it. The defendant generally must do so within 30 days after service of the initial pleading. The court explained that merely receiving a complaint does not begin the removal period; formal service or a valid waiver of formal service is required.

Court’s analysis

The court held that the unredacted complaint was a pleading served on Citibank and therefore had to be filed in federal court. But the court found that service was not completed on June 1. New York law did not automatically permit email service in these circumstances, and the record showed no earlier agreement or court authorization allowing service by email. Silverman’s counsel’s request that Citibank advise whether it would accept email service showed that no such prior agreement existed.

The parties’ later stipulation did not establish that service occurred on June 1. Although a recital in the stipulation referred to service by email on that date, another recital said the parties agreed in principle to email service on June 2. The court also explained that the stipulation’s operative provisions did not specify the date of service, and recital paragraphs alone could not create or change substantive rights under New York law.

Because service was not completed on June 1, the earliest date the 30-day removal period could have ended was July 5, after accounting for the intervening weekend and the July 4 holiday. Citibank filed the unredacted complaint on July 5, making the filing timely. The court rejected Silverman’s additional arguments concerning Citibank’s sealing motion as moot or irrelevant to whether Citibank had filed the complaint for purposes of § 1446. The court noted that Silverman was not arguing that the federal court lacked subject-matter jurisdiction.

Disposition

Judge Gregory H. Woods denied Silverman’s motion to remand. The court found that Citibank’s removal satisfied 28 U.S.C. § 1446 and directed the Clerk of Court to terminate the pending motion at docket entry 32.