The opinion of the court was delivered by: Sifton, District Judge.
This case is currently before this Court on plaintiffs' motion
to remand the proceeding to state court pursuant to 28 U.S.C. § 1447(c).
For the reasons discussed below this motion is
This case was removed from state court by defendant pursuant to
28 U.S.C. § 1442(a)(1) which, as discussed below, allows,
inter alia, persons "acting under" officers of the United
States to remove to federal courts certain actions in which
they are defendants.
The following facts, except where expressly noted, are not
OMG and Bakalis had credit lines with CrossLand Savings FSB
("CrossLand"). CrossLand is a federally chartered savings bank
subject to certain regulations issued by the Office of Thrift
Supervision ("OTS"), 12 C.F.R. § 563.180(1)(d), which require
the bank to report known or suspected criminal activity that
comes to its attention to the OTS and to law enforcement
The dealings between OMG, Bakalis and CrossLand which led to
this litigation involved a series of renegotiations of the
credit lines. In the course of these negotiations, on
approximately April 18, 1991, CrossLand sent a report
concerning changes in the status of the collateral for the
credit lines to the Federal Bureau of Investigation ("FBI") and
to the OTS.
CrossLand characterizes this report as required by
12 C.F.R. § 563.180(1)(d). Plaintiffs argue this is incorrect because the
report was untimely and motivated by a desire for private
In May 1991 CrossLand commenced a law suite in state court
against OMG and two other suits against Mr. and Mrs. Bakalis
demanding repayment of instruments involved in the credit
lines. These were consolidated in Supreme Court, Kings County,
before Justice Julius Vinik and are currently pending. The
suits were all commenced by motion for summary judgment in lieu
of complaint pursuant to New York CPLR § 3213.
On October 8, 1991, plaintiffs brought the current suit in
Supreme Court, Kings County. The action was commenced as a
separate action rather than as counterclaims to CrossLand's
actions because claims such as those presented here are not
permissible in actions brought by motion permissible in actions
brought by motion for summary judgment in lieu of complaint.
The case before this Court presents three claims for relief.
The first claim is for fraud. This claim alleges that
plaintiffs relied to their detriment on affirmative
misrepresentations made by CrossLand during the renegotiation
of the credit lines.
The second claim is for intentional interference with business
relations. This claim alleges that CrossLand's report to the
FBI was solely motivated by a desire to harm Bakalis and
related business entities and that the report did result in
The third claim is for defamation. This claim alleges that
CrossLand in its report knowingly published incorrect
information to the FBI which harmed the business reputation of
On October 30, 1991, CrossLand filed a Notice of Removal of
this suit in the Eastern District of New York pursuant to
28 U.S.C. § 1442(a)(1).
On Nov. 12, 1991, Justice Vinik denied CrossLand's summary
judgment motions, thereby converting their motions into
complaints: CPLR § 3213. At that time, he confirmed the
previously granted attachments of plaintiffs' assets.
Plaintiffs seek to have the present suit remanded to state
court for consolidation with the three actions already pending
before Justice Vinik.
The instant removal is pursuant to 28 U.S.C. § 1442(a)(1) which
reads as follows:
"(a) A civil action or criminal prosecution commenced in a
State court against any of the following persons may be removed
by them to the district court of the United States for the
district and division embracing the place where in it is
"(1) Any officer of the United States or any agency thereof, or
person acting under him, for any act under color of such office
or on account of any right, title or authority claimed under
any Act of Congress for the apprehension or punishment of
criminals or the collection of the revenue."
"A motion to remand the case on the basis of any defect in
removal procedure must be made within 30 days after the filing
of the notice of removal. . . . If at any time before final
judgment it appears that the district court lacks ...