The Clerk of Court is respectfully instructed to amend the caption as set forth… v. Alvas Corp. 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7…

* The Clerk of Court is respectfully instructed to amend the
caption as set forth above.
** The Honorable Roslynn R. Mauskopf, of the United States
District Court for the Eastern District of New York, sitting by
designation.
11-189-cv
Pietrangelo v. Alvas Corp.
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2011 8
9
(Submitted: February 10, 2012 Decided: July 9, 2012) 10
11
Docket No. 11-189-cv 12
13
14
J AMES E. P IETRANGELO , II, 15
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Plaintiff-Appellant, 17
18
–v.– 19
20
A LVAS C ORPORATION , DBA P INE S TREET D ELI , G EORGE A LVANOS , C HRISTINE 21
A LVANOS , E VAN A LVANOS , J OHN D OE , C ITY OF B URLINGTON , E MMETT B. H ELRICH , 22
in his personal and official capacities, W ADE L ABRECQUE , in 23
his personal and official capacities, W ILLIAM S ORRELL , in his 24
official capacity, 25
26
Defendants-Appellees. *
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28
29
30
Before: 31
W ESLEY , C ARNEY , Circuit Judges, and M AUSKOPF , District Judge. **
32
33
Appeal from a judgment of the United States District 34
Court for the District of Vermont (Reiss, J.), dismissing 35
all of Plaintiff’s federal and state law claims brought 36
against Defendants. Plaintiff filed his complaint in 37

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1 We note, as the district court recognized, that Pietrangelo
is an attorney with substantial litigation experience. Thus he
“cannot claim the special consideration which the courts
customarily grant to pro se parties.” Holtz v. Rockefeller &
Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (internal quotation marks
omitted).
2
Vermont state court, and Defendants removed the action to 1
federal district court. Plaintiff contends that the 2
district court erred in denying his motion to remand to 3
state court because Defendants’ notice of removal and 4
consent thereto were untimely under 28 U.S.C. § 1446(b). We 5
conclude that the thirty-day removal period began to run 6
when the City Defendants received service, and not when the 7
first-served defendant received service. Accordingly, the 8
City Defendants’ notice and the remaining Defendants’ 9
subsequent consent to removal were timely. 10
11
AFFIRMED. 12
13
14
15
James E. Pietrangelo, II, pro se, Avon, OH, for 16
Plaintiff-Appellant. 17
18
Robin Ober Cooley, Pierson Wadhams Quinn Yates & 19
Coffrin, Burlington, VT, for Defendants- 20
Appellees Alvas Corporation, DBA Pine Street 21
Deli, George Alvanos, Christine Alvanos, Evan 22
Alvanos. 23
24
Pietro J. Lynn, Lynn, Lynn & Blackman, P.C., 25
Burlington, VT, for Defendants-Appellees City 26
of Burlington, Emmett B. Helrich, Wade 27
Labrecque. 28
29
David R. Groff, Assistant Attorney General, for 30
William H. Sorrell, Attorney General of the 31
State of Vermont, Montpelier, VT, for 32
Defendant-Appellee William H. Sorrell. 33
34
35
36
P ER C URIAM : 37
Plaintiff-Appellant James E. Pietrangelo, II, 1 appeals 38
from a December 15, 2010 judgment of the United States 39

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2 We also conclude in a separate Summary Order that the
district court did not err in (1) denying Pietrangelo’s motion to
3
District Court for the District of Vermont (Reiss, J.), 1
granting Defendants’ motions for summary judgment and 2
dismissing all of Pietrangelo’s federal and state law claims 3
brought against Defendants. Pietrangelo filed his complaint 4
in Vermont state court, and Defendants removed the action to 5
federal district court pursuant to 28 U.S.C. § 1441. 6
Pietrangelo contends that the district court erred in 7
denying his motion to remand to state court because, by his 8
calculation, Defendants’ notice of removal and consent 9
thereto were untimely under 28 U.S.C. § 1446(b). 10
Specifically, he argues that the thirty-day removal period 11
began when service was effected on the first defendant, 12
Attorney General William H. Sorrell, and that later-served 13
defendants were untimely when they filed their notice of 14
removal well beyond that time. We disagree and conclude 15
that Defendants City of Burlington, Emmett B. Helrich, and 16
Wade Labrecque (the “City Defendants”) timely filed their 17
notice of removal because their filing occurred within 18
thirty days from when they received service and that all 19
earlier-served defendants properly consented to removal. 20
Accordingly, we affirm the denial of Pietrangelo’s motion to 21
remand the action to state court. 2
22

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compel discovery and for leave to conduct additional discovery;
(2) granting Defendants’ summary judgment motions; and (3)
denying Pietrangelo’s motion for reconsideration of a decision
granting summary judgment to certain defendants.
4
We recite only the limited procedural history relevant 1
to our discussion. Pietrangelo filed his complaint in state 2
court on July 31, 2008. Attorney General Sorrell waived 3
service of process on August 21, 2008. However, the 4
remaining defendants—Alvas Corporation, George Alvanos, 5
Christine Alvanos, and Evan Alvanos (the “Alvas Defendants”) 6
and the City Defendants—did not waive service of process. 7
On February 24, 2009, Pietrangelo served the Alvas 8
Defendants with a summons and complaint. On February 24 and 9
25, 2009, Pietrangelo served the City Defendants. 10
On March 16, 2009, the City Defendants filed a notice 11
of removal, in which counsel for the City Defendants 12
represented that the other defendants had consented to 13
removal and would formally notify the court of their 14
consent. On March 17, 2009 and March 24, 2009, 15
respectively, the Alvas Defendants and Attorney General 16
Sorrell submitted letters to the district court confirming 17
their consent to the City Defendants’ removal motion. The 18
Clerk’s Office, however, returned each letter for failing to 19
comply with the format requirements of Local Rule 5.1. The 20
Alvas Defendants and Attorney General Sorrell then 21

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5
reiterated their consent to the City Defendants’ removal in 1
submissions that were accepted by the court on April 1, 2009 2
and April 3, 2009, respectively. 3
On April 3, 2009, Pietrangelo filed a motion to remand 4
his action to state court; the district court denied the 5
motion on October 7, 2009. We review a district court’s 6
denial of a motion to remand de novo. Whitaker v. Am. 7
Telecasting, Inc., 261 F.3d 196, 201 (2d Cir. 2001). 8
The statute in question, 28 U.S.C. § 1446(b), requires 9
a defendant seeking to remove an action from state to 10
federal court to file a notice of removal within thirty days 11
of receiving service of the initial pleading. The City 12
Defendants filed a notice of removal less than thirty days 13
after they were served with the complaint. Pietrangelo 14
contends that the notice was untimely, however, because it 15
was filed nearly seven months after the first defendant 16
waived service of process, an equivalent (for purposes of 17
§ 1446(b)) to receiving service. Thus we must decide an 18
issue over which several circuits have disagreed prior to 19
the December 7, 2011 amendment of § 1446: “Does the first- 20
served defendant’s thirty-day clock run for all subsequently 21
served defendants (the first-served rule), or does each 22

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3 28 U.S.C § 1446(b) was amended in relevant part by adding
paragraph 2:
(2)(A) When a civil action is removed solely under
section 1441(a), all defendants who have been properly
joined and served must join in or consent to the removal
of the action.
(B) Each defendant shall have 30 days after receipt by or
service on that defendant of the initial pleading or
summons described in paragraph (1) to file the notice of
removal.
(C) If defendants are served at different times, and a
later-served defendant files a notice of removal, any
earlier-served defendant may consent to the removal even
though that earlier-served defendant did not previously
initiate or consent to removal.
Pub. L. No. 112-63, § 103(b)(3)(B), 125 Stat. 760, 762 (2011)
(codified as amended at 28 U.S.C. § 1446(b)) (emphasis added).
6
defendant get his own thirty days to remove after being 1
served (the later-served rule)?” Destfino v. Reiswig, 630 2
F.3d 952, 955 (9th Cir. 2011). 3
Had this case originated after December 7, 2011, when 4
§ 1446 was amended, the City Defendants’ notice of removal 5
would indisputably have been timely–the current statute 6
codifies the later-served rule. See 28 U.S.C. § 1446(b). 3
7
In construing the thirty-day period of the pre-amendment 8
§ 1446(b), the majority of the circuits have adopted the 9
later-served rule. See, e.g., Delalla v. Hanover Ins., 660 10
F.3d 180, 189 (3d Cir. 2011); Destfino, 630 F.3d at 956; 11
Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1209 12

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4 We read the phrase “defendant or defendants” in § 1446(a)
to indicate that multiple defendants may attempt to remove an
action by filing a notice of removal. See Delalla, 660 F.3d at
186.
7
(11th Cir. 2008); Marano Enters. of Kan. v. Z-Teca Rests., 1
L.P., 254 F.3d 753, 756-57 (8th Cir. 2001); Brierly v. 2
Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 533 (6th 3
Cir. 1999). Two circuits have adopted variations of the 4
first-served rule. See Barbour v. Int’l Union, 640 F.3d 5
599, 613 (4th Cir. 2011) (en banc); Getty Oil Corp. v. Ins. 6
Co. of N. Am., 841 F.2d 1254, 1262-63 (5th Cir. 1988). 7
We agree with the majority of our sister circuits and 8
adopt the later-served rule “for reasons grounded in 9
statutory construction, equity and common sense.” Destfino, 10
630 F.3d at 955. It would appear that Congress addressed 11
the shortcomings of the statute that necessitated judicial 12
stitchery. In addition, we agree with the thorough 13
reasoning of those circuits that share our view. 14
The plain text of the statute supports the later-served 15
rule because “[g]iven that § 1446(a) explicitly affirms the 16
possibility of multiple notices of removal, the only 17
reasonable reading of § 1446(b) is that the subsection 18
applies individually to each notice of removal that might 19
potentially be filed by each removing ‘defendant.’” 4
20

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8
Delalla, 660 F.3d at 186. Moreover, § 1446(b) omits any 1
reference to “first defendant” or “initial defendant.” See 2
id. at 187; Destfino, 630 F.3d at 955. We also agree that 3
the later-served rule is more equitable, as “[a] contrary 4
rule could deprive some defendants of their right to a 5
federal forum because they were served too late to exercise 6
that right, and encourage plaintiffs to engage in unfair 7
manipulation by delaying service on defendants most likely 8
to remove.” Destfino, 630 F.3d at 955-56. 9
Finally, we reject the rationale for adopting the 10
first-served rule for substantially the same reasons stated 11
by the Third and Ninth Circuits. See Delalla, 660 F.3d at 12
187-89; Destfino, 630 F.3d at 956. Most notably, the last- 13
served rule is not inconsistent with the requirement that 14
defendants unanimously join in a removal notice because we 15
do not construe a defendant’s failure to file a notice of 16
removal as an affirmative decision not to join another 17
defendant’s removal request in the future. See Delalla, 660 18
F.3d at 188; Destfino, 630 F.3d at 956. Moreover, we agree 19
that the Supreme Court’s holding in Murphy Bros., Inc. v. 20
Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 21
(1999)—that the thirty-day removal period begins upon formal 22

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5 Since Murphy Brothers, district courts in this Circuit
have generally applied the later-served rule. See, e.g.,
Barnhart v. Federated Dep’t Stores, Inc., No. 04 Civ. 3668, 2005
WL 549712, at *6 (S.D.N.Y. Mar. 8, 2005); Fernandez v. Hale
Trailer Brake & Wheel, 332 F. Supp. 2d 621, 622-24 (S.D.N.Y.
2004); Piacente v. State Univ. of N.Y. at Buffalo, 362 F. Supp.
2d 383, 390 (W.D.N.Y. 2004); Varela v. Flintlock Constr., Inc.,
148 F. Supp. 2d 297, 300 (S.D.N.Y. 2001).
6 We recognize that the current version of § 1446(b) does
address joinder and consent to removal. See supra note 3.
Accordingly, we note that our discussion here pertains only to
the pre-amendment statute.
9
service of process—“cuts against binding later-served 1
defendants to decisions made before they were joined.” 5
2
Destfino, 630 F.3d at 956. 3
For the purpose of applying the pre-amended removal 4
statute, we adopt the later-served rule and hold that each 5
defendant has thirty days from when he received service to 6
file a notice of removal. Accordingly, the City Defendants’ 7
notice of removal was timely. 8
Pietrangelo also contends that even under the later- 9
served rule, the remaining Defendants’ consent to removal 10
was untimely. We disagree for substantially the same 11
reasons stated by the district court in its October 7, 2009 12
Opinion and Order. The pre-amendment § 1446(b) speaks only 13
of the “requirements for filing a notice of removal; it does 14
not speak to joinder in another defendant’s notice of 15
removal.” 6 Delalla, 660 F.3d at 188. District courts 16
within this Circuit, however, have consistently interpreted 17

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10
the statute “as requiring that all defendants consent to 1
removal within the statutory thirty-day period, a 2
requirement known as the ‘rule of unanimity.’” Beatie & 3
Osborn LLP v. Patriot Scientific Corp., 431 F. Supp. 2d 367, 4
383 (S.D.N.Y. 2006). Although we have not yet advised what 5
form a consent to removal must take, we agree with the 6
district court that the remaining defendants must 7
independently express their consent to removal. See 8
Ricciardi v. Kone, Inc., 215 F.R.D. 455, 458 (E.D.N.Y. 9
2003); Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 10
(E.D.N.Y. 1998). We conclude that the Alvas Defendants and 11
Attorney General Sorrell satisfied this requirement when 12
they submitted letters to the court within the thirty-day 13
removal period. Moreover, we find no error in the district 14
court’s decision to consider those letters of consent timely 15
despite their noncompliance with the format requirements of 16
Local Rule 5.1. See Contino v. United States, 535 F.3d 124, 17
126-27 (2d Cir. 2008). 18
We have considered Pietrangelo’s remaining arguments 19
pertaining to the denial of his motion to remand and find 20
them to be without merit. For the foregoing reasons, and 21
the reasons set forth in the Summary Order accompanying this 22
Opinion, the judgment of the district court is hereby 23
AFFIRMED. 24

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