Canon Financial Services v. Permanent Mission of Madagascar

The case of the day is Canon Financial Services, Inc. v. Permanent Mission of Madagascar (S.D.N.Y. 2017). The opinion doesn’t explain what the case is about, though we could take a guess from the title. In any event, Canon sued Magadascar’s mission to the United Nations in New York state court more than five years ago. Madagascar eventually removed the case to the District Court (under the FSIA foreign states have the power of removal). Canon argued that the removal was untimely and sought a remand.

The first problem with this argument is that the FSIA removal statute, 28 U.S.C. § 1441(d), allows the court to enlarge the foreign state’s time for removal for cause shown. But more to the point, under Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), the time for removal doesn’t begin to run until the defendant has been served with process. Here, Canon served process by delivering a copy of the papers to the Mission’s managing agent, but of course that is insufficient, since a mission is regarded as a foreign state (not an instrumentality or agency), and since the plaintiff was therefore required to use the methods in § 1608(a) in the order the statute provides. So the time for removal had not even begun to run.

Canon pointed to “extreme prejudice to the plaintiff …, or a statute of limitations issue” as grounds for a different result. No luck. “In light of the fact that service pursuant to the FSIA was never effectuated in this case, the time that Defendant has to remove did not begin to run. Defendant thus does not have to show good cause for enlargement of the time to remove, and prejudice to the Plaintiff is irrelevant to whether removal was proper.”

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