The Percy Program

It is a fight to level the playing field to be able to compete for jobs and careers on the basis of skills and make available apprentice training to all. In 1973 Al Percy launched a class action lawsuit to give workers like him a chance to better their lot in life. It would also ensure the availability of skilled workers to build the infrastructure of the future. Who is Al Percy? What is the lawsuit?

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US Court of Appeals Second Circuit Case 21-1564, Doc 6, Pre-Argument Statement on Appeal 07-12-2021

  • Text
  • Oriska
  • Plaintiff
  • Kernan
  • Defendants
  • Pageid
  • Removal
  • Corporation
  • Percy
  • Representatives
  • Plaintiffs
  • Appeals
  • Circuit

ong>Caseong> 1:ong>21ong>-cv-014ong>21ong>-NGG ong>Caseong> ong>21ong>-ong>1564ong>, ong>Docong>ument 6, 1907/12/20ong>21ong>, Filed 05/27/ong>21ong> 3135847, Page Page26 18 ong>ofong> 27 ong>ofong> PageID 104 #: 2289 1. The Rule ong>ofong> Unanimity A removing party must obtain the consent ong>ofong> all “properly joined and served” defendants for a federal court to exercise jurisdiction over the action. Williams v. Connell, No. 12-cv-3593 (SLT), 2017 WL 2829686, at *3 (E.D.N.Y. June 29, 2017), quoting 28 U.S.C. § 1446(b)(2)(A). This rule ong>ofong> unanimity is “strictly interpreted and enforced.” Burr ex rel. Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432, 437 (S.D.N.Y. 2006). If it is not satisfied, then “the petition is defective and the case must be remanded.” Snakepit Auto., Inc. v. Superperformance Int’l, LLC, 489 F. Supp. 2d 196, 201 (E.D.N.Y. 2007). The rule ong>ofong> unanimity “advances the congressional purpose ong>ofong> giving deference to a plaintiff’s choice ong>ofong> a state forum and ong>ofong> resolving doubts against removal in favor ong>ofong> remand.” Bedminster Fin. Grp., Ltd. v. Umami Sustainable Seafood, Inc., No. 12-cv-5557 (JPO), 2013 WL 1234958, at *5 (S.D.N.Y. Mar. 26, 2013). There are three exceptions to the rule ong>ofong> unanimity. Id. at *6. “A party asserting proper removal may raise an exception to the unanimity rule when: (1) the non-joining defendants have not been served with service ong>ofong> process at the time the removal petition is filed; (2) the non-joining defendants are merely nominal or formal parties; or (3) the removed claim is a separate and independent claim as defined by 28 U.S.C. § 1441(c).” Snakepit Automotive, 489 F. Supp. 2d at 201-02. In the Nassau County Action, where Oriska is a party via intervention, Oriska and the Class Representatives contend that the service exception to the rule ong>ofong> unanimity applies and is satisfied here. (See Bay Park Ctr. for Nursing & Rehab., 20-cv-6291, Class Representatives’ Opp. to Remand (“Class Opp.”) (Dkt. 40) at 7; Oriska Opp. to Remand (“Oriska Opp.”) (Dkt. 38) at 11.) They Mot. to Remand (Dkt. 10-1) at 8-9.) Given the other independent grounds for remand, the court declines to address that question. 18

ong>Caseong> 1:ong>21ong>-cv-014ong>21ong>-NGG ong>Caseong> ong>21ong>-ong>1564ong>, ong>Docong>ument 6, 1907/12/20ong>21ong>, Filed 05/27/ong>21ong> 3135847, Page Page27 19 ong>ofong> 27 ong>ofong> PageID 104 #: 2290 assert that the Class Representatives were not required to obtain the Healthcare Employers’ consent because the Healthcare Employers were not served with the Amended Intervention Complaint prior to removal ong>ofong> the action. Id. Oriska and the Class Representatives are incorrect. Federal courts “consistently look to state law to determine whether a defendant was properly served when evaluating procedural challenges to a Defendant’s removal.” Williams, 2017 WL 2829686, at *4. New York law permits service via e-filing on parties who have already appeared in the action. See N.Y. C.P.L.R. §§ 3012(a), ong>21ong>03(b)(7); N.Y. Comp. Codes R. & Regs. tit. 22, § 202.5-b(f)(2)(ii) (“An e- filing party causes service ong>ofong> an interlocutory document to be made upon another party participating in e-filing by filing the document electronically.”). The Healthcare Employers are the original plaintiffs in the Nassau County Action, who appeared in this action at its outset and have participated in e-filing throughout. (See Bay Park Ctr., ong>21ong>-cv-6291, State ong>Courtong> ong>Docong>ket Sheet (“State ong>Courtong> ong>Docong>ket”) (Dkt. 30-1).) Under New York law, they were deemed served with the Amended Intervention Complaint when it was e-filed on December 28, 2020. (Id. at 3.) Similarly, the Employer Defendants are the original defendants in the remaining seventeen Removed Actions, and they have participated in e-filing in state court throughout those actions. The rule ong>ofong> unanimity therefore required the Class Representatives to obtain their consent for removal in all eighteen Removed Actions, which they did not do. Failure to satisfy the rule ong>ofong> unanimity is a procedural defect that requires remand ong>ofong> the Removed Actions to state court. See St. Vincent’s Hosp., 2007 WL 2325073, at *2. While remand is warranted on that basis alone, the court additionally addresses the arguments regarding venue and jurisdiction because ong>ofong> their relevance to the issues ong>ofong> attorneys’ fees and potential attorney misconduct. 19

Tag-along Lawsuits against Putative Class Defendant Members: Decision Appealed, Response and Complaint