The case of the day is Monagas v. Samsung Electronics America, Inc. (D. Conn. 2013). The facts of the dispute are not made clear in the decision. Liana Monagas sued Samsung Electronics America, Inc., Samsung Electronics Corp., and Sears Roebuck & Co. in the Connecticut state courts. Samsung Electronics America and Sears removed the case to the District Court, and Monagas moved to remand the case on the grounds that Samsung Electronics Corp. had not joined in the removal.
Ordinarily all defendants must join in a notice of removal, but there is an exception where a defendant has not been “properly joined and served” at the time of the removal. 28 U.S.C. § 1446(b)(2)(A). Here, Monagas had attempted to effect service on Samsung Electronics Corp. in South Korea, but it had done so by mail. Korea, a party to the Hague Service Convention, has objected to service by postal channels. Thus the court held that Samsung had not been properly served, and thus that its consent to the removal was not required. Thus the court denied the motion to remand.
The decision seems correct. There doesn’t seem to be much possibility of abuse here, as there arguably could have been with Gentile v. Biogen IDEC had the case come out the other way. There, the point was that a defendant might be able to remove an otherwise unremovable case simply by filing the notice of removal before the plaintiff was able to effect service of process. Here, the issue isn’t whether anyone could make a removable case unremovable or make an unremovable case removable, but rather just an issue of timing.
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