defeat the goals set forth in Fed.R.Civ.P. 1 (the "just, speedy and inexpensive" determination of every action). The 1993 amendments to that Rule emphasize its importance in providing that all procedural rules should be "administered" as well as "construed" to seek these goals.
The restriction of initial removal to the district where a state court action was pending has particular importance because of the self-executing nature of a notice of removal under 28 USC 1446. No judicial approval is necessary for the effectiveness of the notice; the 1988 amendments to § 1446 abolished the former mischaracterized "petition for removal" and replaced it by the current notice of removal. If the adversary wishes to contest removal, now as then this must be done through a motion to remand under 28 USC 1447, brought in the court to which the case was removed.
If 28 USC 1441(a) did not strictly limit removal to the district in which the initial state court action was pending, a removing party could shift a state court suit pending in New York directly to the District of Hawaii without any intermediate judicial intervention. Such a procedure could lend itself to distant forum abuse of the types condemned in Noxell Corp v. Firehouse No 1, 248 U.S. App. D.C. 329, 771 F.2d 521 (DC Cir. 1985), earlier decision 760 F.2d 312 (DC Cir. 1985) (R. Ginsburg, J.).
As applied to the Title 12 provision involved here, this would mean that an Oregon resident, with a claim against a bank having its principal place of business in Florida, could find the case moved to Florida by means of an ex parte notice of removal without any prior opportunity to be heard. It strains the imagination to assume that Congress would have intended by use of a general term such as "appropriate" to authorize an ex parte procedure that would lend itself to such a result.
To authorize an ex parte transfer to a district other than that in which a case had been pending without a showing of emergency might raise constitutional questions of due process. See Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991); authorities cited, Little Tor Auto Center v. Exxon, 822 F. Supp. 141 (SDNY 1993). Such questions are avoided by following the plain meaning of 28 USC 1441.
It can be argued that to require the FDIC to file a separate motion to transfer will cause additional delay and expense. Such an argument would overlook the possibility that a separate motion by the adversary would be necessary to challenge the appropriateness of the direct removal to a district not that of the state action. Moreover, the additional cost and delay may well be minor compared to other costs and delays frequently incurred in litigation of this nature. See Dollar Dry Dock Bank v. Denning, 148 F.R.D. 124 (SDNY 1993).
At a deeper level, removal of lawsuits of the magnitude normally cognizable in City Court to United States district courts because of presence of a federal question or protective jurisdiction tends to place the district courts in the role of small claims tribunals, resulting in consumption of additional time and expense for all parties as well as the court. See generally Schueler v. Roman Asphalt, 827 F. Supp. 247 (SDNY 1993); Dickman v. FDR VA Hospital, 148 F.R.D. 513 (SDNY 1993).
Where such removal has nonetheless occurred, prompt effort to achieve settlement is particularly important before the cost of litigation exceeds - often for both parties - the amount in dispute. Although I would be reluctant to order procedural steps that would have to be carried out after transfer of a case, I have every confidence that the FDIC will pursue settlement or alternate dispute resolution without the need for any such direction, and will reconsider its policy concerning when removal is or is not appropriate.
Improper removal to this district of a state court case pending in the Eastern District of New York does not compel remand of the case to the state court so that it can then be removed to the Eastern District. That would bring about additional delay and expense while serving no useful purpose.
Federal courts have broad authority to reach a proper result by the most expedient means. Where a case can be sent directly to its proper site, this may be done without resort to unnecessary intermediate steps. In re Pan Am ( Murray v. Pan American Airways, 16 F.3d 513 (2d Cir. 1994). This case is transferred to the Eastern District of New York.
Dated: White Plains, New York
May 9, 1994
VINCENT L. BRODERICK, U.S.D.J.