Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BAKALIS v. CROSSLAND SAV. BANK

December 17, 1991

CHARALABOS BAKALIS, ETC., ET ANO., PLAINTIFFS,
v.
CROSSLAND SAVINGS BANK, DEFENDANT.



The opinion of the court was delivered by: Sifton, District Judge.

MEMORANDUM AND ORDER

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 granted.

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 disputed.

Plaintiff Olympian Mortgage Group, Inc. ("OMG") is a private mortgage bank located in Kings County, New York, Charalabos Bakalis a/k/a Bob Bakalis ("Bakalis") is president of OMG.

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 authorities.

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 profit.

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 such harm.

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 Bakalis.

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.

DISCUSSION

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
  pending:
  "(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."

In order to satisfy this provision, CrossLand must show that it is a "person," as required by the first sentence of the provision, and both "acting under him" and performing an "act under color of such office," as required by the second sentence. If removal was inappropriate, the suit is remanded under 28 U.S.C. § 1447(c).

  "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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.