IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMERCE COMMERCIAL :

LEASING, LLC, ASSIGNEE OF :

NORVERGENCE, INC. :

: CIVIL ACTION NO. 04-CV-04554(SD)

Plaintiff, :

:

v. :

:

BI-COUNTY SCALE :

ACQUISITION COMPANY, LLC :

d/b/a BI-COUNTY INDUSTRIES :

and :

IRA ROSENFELD :

:

Defendants. :

BRIEF IN SUPPORT OF MOTION OF PLAINTIFF, COMMERCE

COMMERCIAL LEASING, LLC, ASSIGNEE OF NORVERGENCE, INC.,

TO REMAND CIVIL ACTION

I. Factual Background

Plaintiff, Commerce Commercial Leasing, LLC (hereinafter referred to as

“Commerce”), Assignee of Norvergence, Inc. (hereinafter referred to as “Norvergence”)

is a corporation organized and existing under the laws of the Commonwealth of

Pennsylvania. Defendant, Bi-County Scale Acquisition Company, LLC d/b/a Bi-County

Industries (hereinafter referred to as “Bi-County”) is, upon information and belief, a New

York Corporation. Defendant, Ira Rosenfeld (hereinafter referred to as “Rosenfeld”) is,

upon information and belief, an adult individual and Vice President of Bi-County.

On or about October 1, 2003, Bi-County executed and delivered to Norvergence a

certain Equipment Rental Agreement Number 100142 (hereinafter referred to as

“Lease”), which provided for the lease and hire of certain items of equipment as more

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particularly described therein (hereinafter referred to as “Equipment”). In order to induce

Norvergence to enter into the Lease, on or about October 1, 2003, Rosenfeld made,

executed, and delivered to Norvergence a Personal Guaranty (“Guaranty”) contained

within the Lease, wherein Rosenfeld agreed to unconditionally, jointly and severally

guaranty to Norvergence, all payments and other obligations owed to Norvergence by BiCounty under the Lease. Thereafter, Commerce became the Assignee of Norvergence by

virtue of an Assignment, thereby acquiring all of Norvergence’s right, title and interest in

and to the Lease and Equipment, including the right to institute legal proceedings to

exercise the rights and remedies of Lessor pursuant to same.

On August 19, 2004, Commerce commenced a Civil Action against Bi-County

and Rosenfeld by filing a Complaint in the Montgomery County, Pennsylvania Court of

Common Pleas as Docket No. 04-23444. On August 27, 2004, Bi-County was personally

served with Plaintiff’s Complaint by Process Server at the address of 75 Kean Street,

West Babylon, Suffolk County, New York upon Frank Figueroa, Officer of Bi-County.

On September 9, 2004, Rosenfeld was personally served with Plaintiff’s Complaint by

Process Server at the address of 2 Carlin Place, Great Neck, Nassau County, New York

upon the Defendant.

On September 28, 2004, Bi-County and Rosenfeld filed a Petition for Removal of

the Civil Action to the United States District Court for the Eastern District of

Pennsylvania.

II. The Instant Matter Should be Remanded for Failure to Conform to 28

U.S.C. § 1446(b)

A. Procedure for Removal

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The procedure for Removal of Civil Action is set forth in 28 U.S.C. § 1446(b).

“A notice of removal shall be filed within thirty (30) days after receipt by the Defendant,

through service or otherwise, of a copy of the initial pleading setting forth the claim for

relief upon which such action or proceeding is based.”

The courts have shown disfavor toward removal generally. The Court of Appeals

has held that the removing Defendant bears the burden of establishing that the filing of

the Notice of Removal was both timely filed and that the procedure was proper. Boyer v.

Snap-On Tools Corp., 913 F.2d 108, 111 (3d. Cir. 1990). Additionally, the Supreme

Court has held that removal statutes should be strictly construed in favor of state court

jurisdiction.

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). Any doubts should

be resolved in favor of remand. Rodriguez v. SCG Mortgage Corp., 1998 WL 54339

(E.D.Pa. 1998) citing Boyer, 913 F.2d at 111. Additionally, it is clear that when there is

more than one Defendant, each Defendant must join in and consent to the removal

petition. Ogeltree, III v. Barnes, 851 F.Supp. 184, 186 (E.D.Pa. 1994). A removal

petition, therefore, faces a difficult and exacting test in order to be procedurally sound.

B. Faulty Removal in the Instant Matter

The instant matter should be remanded because the procedure for removal was

faulty. Defendant Bi-County was served with Plaintiff’s Complaint by Process Server on

August 27, 2004. Defendant Rosenfeld was served with Plaintiff’s Complain by Process

Server on September 9, 2004. However, the Notice of Removal was not filed until

September 28, 2004. This date, being thirty-two (32) days following service of the

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Complaint upon Bi-County, the chronologically first-served Defendant in the instant

matter, falls beyond the established time frame for proper removal.

Under well-established case law, the Notice of Removal was not timely filed and,

accordingly, this matter should be remanded. It is clear that a defendant has no more than

thirty (30) days from the date on which he or she was served with the Complaint to file a

timely Petition for Removal. The Courts of Appeals have only consented to the removal

of cases in which multiple defendants have each either filed a Petition for Removal or

joined in an already-existing Petition for Removal within thirty (30) days after service of

the Complaint upon that particular defendant. In Getty Oil Corp. v. Insurance Company

of North America, the Court of Appeals held that “all served defendants must join in the

petition [for removal] no later than thirty days from the day on which the first defendant

was served.” 841 F.2d 1254, 1263 (5th Cir. 1988). Additionally, in McKinney v. Board

of Trustees of Maryland Community College, the Court of Appeals held that “individual

defendants have thirty days from the time they are served with process or with a

complaint to join in an otherwise valid removal petition.” 955 F.2d 924 (4th Cir. 1992).

It is clear that a Petition for Removal can be filed no later than thirty (30) days after the

date on which the chronologically first-served defendant is served.

Because the Petition for Removal in controversy in the instant matter was filed

more than thirty (30) days after the first-served Defendant, Bi-County, was served with

Plaintiff’s Complaint, it must be remanded. In fact, this Court has previously remanded a

case that presents a highly similar factual scenario to the instant matter. In Rodriguez,

this Court remanded a case wherein the notice of removal was filed more than thirty (30)

days after service of process of Plaintiff’s Complaint on the chronologically first-served

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Defendant. 1998 WL 54339 (E.D. Pa. 1998). This Court referred to the attempted

removal as an attempt “to piggy-back onto the notice of removal of a later served

defendant ... The attempt to piggy-back removal is not permitted under any known case

law.” Id. at 3.

The same factual situation presents itself in the instant matter. Bi-County is

attempting to “piggy-back” onto the otherwise proper removal by Rosenfeld, whose

particular Notice of Removal was made within thirty days after he was personally served

with Plaintiff’s Complaint. Moreover, Rosenfeld, as an officer, owner or employee of

Bi-County, had notice of the lawsuit upon its service on Bi-County and used the fact that

Rosenfeld was not served until several days later as an attempt to extend the removal

period, the very occurrence that the Federal Rules of Civil Procedure invalidates. BiCounty’s untimely attempted “piggy-back” constitutes a circumvention of 28 U.S.C. §

1446(b). Because the courts have definitively established that the Notice of Removal

must be made within thirty days of service upon the first-served defendant, Defendants’

Petition for Removal in the instant matter must be denied and the case must be remanded.

[INTENTIONALLY LEFT BLANK]

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III. Conclusion

The procedure for removal, governed by 28 U.S.C. § 1446(b), states that a

petition for removal must be agreed to by all defendants and filed within thirty days after

service of process of plaintiff’s complaint. When there are multiple defendants, the

courts have held that a notice of removal must be filed within thirty days after service

upon the chronologically first-served defendant. In the instant matter, the notice of

removal was filed more than thirty days after service of process upon the first-served

defendant, Bi-County. This matter should be remanded to the Montgomery County,

Pennsylvania Court of Common Pleas.

Respectfully Submitted,

LAMM, RUBSENSTONE,

TOTARO & DAVID, LLC

By: ____/s/ Stephen Levin, Esquire__________

Stephen Levin, Esquire, Atty I.D. 19300

Todd Harris Surden, Esquire, Atty I.D.

Pending; Admitted to Practice in

Pennsylvania as of October 15, 2004

Four Greenwood Square, Suite 200

Bensalem, PA 19020

(215) 638-9330

Attorneys for Plaintiff

Date: October 26, 2004

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