Domino A LLC v. Accredited Surety and Casualty Company
- Rochon
- 1:23-cv-10919
- U.S. District Court · Southern District of New York
- 3
In Domino A LLC v. Accredited Surety, Judge Rochon granted remand because a served co-defendant did not timely consent to removal.
The plaintiffs, Midvale Indemnity Company, Accredited Surety and Casualty Company, and the third-party parties were affected by the order returning the case to New York state court and closing the federal case.
What happened
In Domino A LLC v. Accredited Surety and Casualty Company, the plaintiffs asked the federal court to send the case back to New York state court. Midvale Indemnity Company had removed the case based on diversity jurisdiction.
The court found that Accredited Surety and Casualty Company had been served before removal but had not consented to it. The 30-day period for obtaining all served defendants’ consent had also expired, so the defect could not be corrected later.
Judge Rochon granted the plaintiffs’ motion to remand. She sent the case back to the New York Supreme Court in New York County, ruled that other pending motions were moot, canceled conferences, and directed the Clerk to close the federal case.
The detailed version
- Domino A LLC v. Accredited Surety and Casualty Company · No. 1:23-cv-10919
- Rochon
- Jan. 2, 2024
Background
Midvale Indemnity Company removed this case from the Supreme Court of New York, New York County, asserting federal jurisdiction based on diversity of citizenship. The plaintiffs—Domino A LLC, Domino A Partners LLC, Domino B LLC, Domino B Partners LLC, 316 Kent Construction LLC, and Upland Specialty Insurance Company—moved to remand, meaning they asked the federal court to return the case to state court.
The case also named Accredited Surety and Casualty Company as a defendant. A declaration from Accredited’s attorney stated that Accredited was served with the summons and complaint on November 20, 2023, had no record that Midvale contacted it about consenting to removal, and did not consent to removal.
Court’s Analysis
The court explained that removal generally requires all properly joined and served defendants to join in or independently consent to removal. A defendant removing a case must obtain that consent within the applicable 30-day period. Accredited had been served before Midvale removed the case on December 15, 2023, but Midvale had not obtained Accredited’s consent before removal. The court also found that the 30-day period had expired, based on the notice of removal’s statement that Midvale was served on November 16, 2023. The court concluded that Accredited could not cure the failure by consenting after the deadline, even if it had chosen to do so.
Disposition
The court granted the plaintiffs’ motion to remand, ECF No. 11. It remanded the case to the State Court of the State of New York, County of New York. The court ruled that any other pending motions were moot, canceled any conferences, and directed the Clerk of Court to close the federal case.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.