The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOSEPH DEMARCO,
Plaintiff,
MEMORANDUM AND ORDER
-against-
Case No. 22-CV-7021-FB-ABL
CITY OF NEW YORK, NEW YORK
CITY DEPARTMENT OF
EDUCATION, BOARD OF
EDUCATION OF THE CITY OF
NEW YORK, JANICE ROSS, and
JUSTIN DAVIS,
Defendants.
Appearances:
For the Plaintiff: For the Defendant:
ANTHONY V. GENTILE DAVID V. HOLMES
Law Office of Anthony V. Gentile STEVEN E. SMITH
6648 Ridge Blvd. New York City Law Department
Brooklyn, NY 11220 100 Church Street, Room 2-142
New York, NY 10007
BLOCK, Senior District Judge:
Plaintiff Joseph DeMarco (“DeMarco”) brought this action against the City
of New York, New York City Department of Education (“DOE”), New York City
Board of Education (“BOE”), Janice Ross, and Justine Davis (collectively,
“Defendants”) in New York state court alleging violations of 42 U.S.C. § 1983,
Title VII of the Civil Rights Act of 1964 “(“Title VII”), 42 U.S.C. § 2000e et seq.,
New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq.,
New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 801-1 et
seq., and tort claims, among other allegations. The Defendants then removed the
action to this Court. DeMarco then moved to remand back to state court. For the
following reasons DeMarco’s motion is GRANTED.
Background
DeMarco’s state court action alleges that he was wrongfully discharged as a
probationary employee by the DOE. See State Court Notice of the Nature of the
Claim, ECF No. 1-2, at 4. DeMarco alleges the decision to terminate him was
discriminatorily based on his status as a white, Catholic male, and his school
principal’s misperception of his sexuality. Id. at 4–5. DeMarco served Defendants
with notice of the state action on October 18, 2022. See Notice of Removal, ECF
No. 1, at 1. The NYC, the DOE, and BOE (collectively, “Municipal Defendants”)
filed a notice of removal on November 16, 2022. Id.
On December 2, 2022, DeMarco requested a pre-motion conference in
anticipation of a motion to remand. See ECF No. 8. In his pre-motion letter,
DeMarco argued that the removal papers filed by the Municipal Defendants had
not stated whether or not Ross or Davis (together, the “Individual Defendants”) had
consented to removal. Id. at 2 (citing 28 U.S.C. § 1446(b)).
In an earlier letter of November 22, 2022, submitted in contemplation of a
separate motion to dismiss, the Municipal Defendants’ attorney, assistant
corporation counsel, David Holmes, had stated that “[a]ll defendants consent to
removal, but [the Office of Corporation Counsel] and the individual defendants
have not yet had the opportunity to conduct representation interviews in accord
with General Municipal Law.” ECF No. 5, at 1 n.1. In a subsequent letter, Holmes
added that “Defendant Davis had provided unambiguous consent via a phone
conversation on or around November 14, 2022, and Defendant Ross provided
unambiguous oral and written consent on or around November 16, 2022,” and
offered to provide supporting affidavits to this effect. ECF No. 11, at 2. DeMarco
countered that these statements were inadequate to support the requirement of
unanimous consent and thus removal was untimely. ECF No. 12, at 3.
Discussion
“Any civil action brought in state court of which the district courts of the
United States have original jurisdiction, may be removed . . . to the district court.”
28 U.S.C. § 1441(a). There are procedural requirements, including that notice of
removal be filed within 30 days of the defendants’ receipt of the initial pleading or
summons, 28 U.S.C. §1446(b)(1), and that “all defendants who have been properly
joined and served must join in or consent to the removal of the action,” 28 U.S.C. §
1446(b)(2)(A). “In light of the congressional intent to restrict federal court
jurisdiction, as well as the importance of preserving the independence of state
governments, federal courts construe the removal statute narrowly, resolving any
doubts against removability.” Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 274
(2d Cir. 1994).
Further, “[i]t is well-established that defendants ‘must independently express
their consent to removal.’” Taylor v. Medtronic, Inc., 14 F.4th 148, 151 (2d Cir.
2021) (quoting Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir. 2012)). The
Second Circuit has straightforwardly explained that a defendant may not consent to
removal after the 30-day deadline for removal has lapsed. See id.
There is no dispute that the notice of removal filed with this Court on
November 16, 2022, was brought on behalf of the Municipal Defendants and not
the Individual Defendants, who are nowhere named or mentioned in the removal
papers. See Notice of Removal, ECF No. 1. The question, then, is whether the
Municipal Defendants’ subsequent assertions, after the 30-day removal deadline
had lapsed, suffice to establish that the Individual Defendants had provided timely
consent to removal, thus satisfying the requirements of unanimity under
1446(b)(2)(A).
In Taylor, a case in which a “corporate sibling” of four other defendants had
not joined a removal notice, the Second Circuit reversed the district court’s denial
of a remand motion, explaining that the “mandatory language” of § 1446(b)(1)–
(2)(A) rendered the court powerless to carve out exceptions. 14 F.4th at 151-52.
The Second Circuit explained that, “[a]t bottom, nothing in the statute provides a
court with any discretion to allow a party to cure a failure to meet the statute's
requirements once the thirty-day period for removal lapses.” Id. at 153 (emphasis
added).
For this reason, I must grant DeMarco’s motion. The removal was
unambiguously undertaken only by the Municipal Defendants. The “mandatory
language” in the statute straightforwardly requires each defendant to provide notice
of consent within the 30-day statutory period. See Taylor, 15 F.4th at 151. “Where,
as here, a properly served defendant fails to provide notice of consent to removal
within the thirty-day statutory period, the defendant cannot cure that failure by
providing late consent.” Id.
There is no question that the Court did not receive “notice of consent to
removal” by November 17, 2022, i.e., 30 days after DeMarco’s October 18, 2022,
service. The first indication that the Individual Defendants might have consented to
removal came in the Municipal Defendants’ letter of November 22, 2022.
Because the Court did not receive notice of consent to removal from the
Individual Defendants by the statutory deadline, the unanimity requirement of
1446(b)(2)(A) was not met and DeMarco’s motion to remand must be granted. To
do otherwise would contradict the Second Circuit’s unambiguous directives that
permitting late consent would disregard the statute’s clear language, see Taylor, 15
F.4th at 151, and that the Court is to “construe the removal statute narrowly,
resolving any doubts against removability,” Somolyo v. J. Lu-Rob Enters., Inc., 923
F.2d 1043, 1046 (2d Cir. 1991).
Conclusion
For the foregoing reasons, DeMarco’s motion to remand this action is
GRANTED. The Clerk of Court is directed to remand this case back to the
Supreme Court of the State of New York, Nassau County.
SO ORDERED.
_/S/ Frederic Block___________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
October 8, 2024