Removal, Waiver, and the Thirty-Day Clock
On March 3, 2024, Maya, a New York citizen, sued Northline Fabricators, Inc. in New York Supreme Court, New York County. Northline is incorporated in Delaware and has its principal place of business in New Jersey. Maya alleges breach of a supply contract and seeks $96,000 in damages, plus $8,000 in contractual attorneys' fees. Northline was served through its registered agent on March 5. On April 8, 34 days after service, Northline filed a notice of removal in the Southern District of New York, checking the diversity box. On May 1, Maya moved to remand, arguing that removal was untimely and that New York courts lack personal jurisdiction over Northline. Northline has 12 long-term customer contacts in New York, a sales office in Buffalo, and $2 million in annual revenue from New York buyers. It has not filed a Rule 12(b)(2) motion. Northline responds that removal waives any personal-jurisdiction objection and that the 30-day clock started when it discovered the amount in controversy from Maya's settlement demand on March 25. The district judge must decide the remand motion.
1. Was Northline's removal timely under 28 U.S.C. section 1446(b)?
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No. The 30-day clock began on March 5, when Northline was served with the complaint. The complaint alleged $96,000 in damages plus $8,000 in contractual attorneys' fees. Contractual fees recoverable by the plaintiff are part of the amount in controversy, so the case was removable on the face of the complaint because the amount exceeded $75,000. The settlement demand on March 25 did not start a new clock. Section 1446(b) gives a second 30-day window only when the initial pleading does not show that the case is removable and the defendant later receives a paper that reveals removability. Here the complaint already revealed it. Northline filed on April 8, 34 days after service, so removal was untimely.
2. Did Northline waive personal jurisdiction by removing?
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No. Removal is not a voluntary appearance that waives a Rule 12(b)(2) defense. A defendant may remove and then move to dismiss for lack of personal jurisdiction, provided it raises the defense in the answer or in a pre-answer motion within the timetable set by Rule 81(c). Northline checked the diversity box but has not filed a jurisdictional motion, so it has not yet waived the defense. Removal can waive defects in service or venue, but it does not waive lack of personal jurisdiction. If the court reached the issue, Northline's New York sales office, 12 long-term customers, and $2 million in New York revenue would likely establish specific jurisdiction over a contract dispute with a New York plaintiff. General jurisdiction is not required.
3. How should the district court rule on the motion to remand?
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Grant the motion to remand. Maya filed the motion on May 1, within 30 days after the April 8 notice of removal, so it is timely under 28 U.S.C. section 1447(c). Untimely removal is a procedural defect, and the court must remand. The court need not reach personal jurisdiction because remand ends the federal case; even if it did, the contacts likely satisfy due process, but that does not cure the late removal. Northline's argument that the clock began on March 25 fails because the complaint already showed a removable case. The court should remand to New York Supreme Court and may consider whether fees and costs are appropriate under section 1447(c).