Cavazzini v. Allison

Background

Evelyn Cavazzini brought a personal-injury action against Nicole Marie Allison and KLLM Transport Services, LLC, alleging that Allison’s vehicle collided with Cavazzini’s vehicle in the Bronx. Cavazzini filed the action in Supreme Court, Bronx County, on February 28, 2023. The defendants jointly removed the action to the U.S. District Court for the Southern District of New York on June 26, 2023, invoking diversity jurisdiction under 28 U.S.C. § 1332.

Cavazzini moved to remand, meaning she asked the federal court to return the case to state court. She argued that the defendants’ notice of removal was filed too late because she had served both defendants through the New York Secretary of State on March 13, 2023, served Allison by certified mail on March 14, 2023, and sent the papers to the defendants’ insurance adjuster.

Court’s Analysis

Under 28 U.S.C. § 1446(b)(1), a notice of removal generally must be filed within 30 days after a defendant receives the initial pleading through service or otherwise. The defendants argued that the deadline did not begin when the Secretary of State or insurance adjuster received the documents. Instead, they argued that it began when the defendants themselves received notice of the service.

The court agreed. It held that service on a defendant’s statutory agent—in this case, the New York Secretary of State—does not start the removal period until the defendant receives notice that service was made. The court found that KLLM received the summons and complaint through its registered agent on May 26, 2023. KLLM’s 30-day deadline therefore ended on June 26, 2023, the same day it filed its notice of removal.

The court also explained that Allison could consent to KLLM’s removal even if Allison had been served earlier and her own removal period had expired. The court rejected Cavazzini’s argument that the insurance adjuster’s email confirmation started the removal period, finding that receipt by an insurance adjuster, without formal service or an agreement that email service was sufficient, was only a courtesy copy.

The opinion’s footnote states that diversity was determined when the case was removed and that the court was satisfied diversity existed at that time among Cavazzini, KLLM, and Allison.

Disposition

Judge Torres denied Cavazzini’s motion to remand because the defendants’ notice of removal was timely. The Clerk of Court was directed to terminate the motion at ECF No. 11.