$ 2,000), all amending Article 18 of various Court Acts (such as the Civil Court Act).
Notices of removal of small claims cases brought by natural persons should not be automatically filed whenever removal is authorized by statute, but rather filed sparingly, where settlement has been unsuccessfully attempted or the claim appears to lack any merit, and the assistance of the federal court in dealing with the matter is considered important. See Shea v. Road Carriers, 818 F. Supp. 631, 632-33 & n 2 (SDNY 1993).
Whether initiated by removal or otherwise, what may be called "federal small claims" frequently challenge the ability of the courts to provide the "just, speedy and inexpensive" determination called for by Fed.R.Civ.P. 1, sentence 2 as amended in 1993. See Dickman v. FDR VA Hospital, 148 F.R.D. 513 (SDNY 1993).
The United States Attorney often necessarily functions as the attorney "for the situation," a phrase coined by Justice Brandeis at his confirmation hearings,
while at the same time protecting the taxpayer from unjustified impositions. See Seymour, The Best Public Law Job in the Nation, 25 Rec Ass'n Bar City of NY 242 (1970). I have every confidence that the United States Attorney will fulfill this role to the extent feasible.
Avenues are in fact open to permit the just disposition of this matter without disregarding the administrative filing requirement for Federal Tort Claims Act and monetary Tucker Act suits.
One approach may be for Mr. Barbieri to inform the court and the United States of what tax penalty resulted from the allegedly erroneous postmark, attaching copies of the penalty notice and any papers or other information showing when the document was in fact mailed or received.
Once this is done, if Mr. Barbieri's factual claim is persuasive, the United States might either communicate with the appropriate taxing authority (particularly if it is the Internal Revenue Service), indicating that possible grounds to vacate the penalty may exist. Another option might be for the United States if appropriate to provide Mr. Barbieri with a statement to that effect which he could submit to the taxing authority, or the postmark could be corrected if erroneously affixed.
Mr. Barbieri should provide the above-mentioned information to permit his case to proceed if appropriate, as well as to permit the United States to determine if his grievance can be redressed informally or administratively. His complaint prepared for the small claims court is inadequate for these purposes.
If Mr. Barbieri fails to submit documents or affidavit evidence within 45 days of the date of this memorandum order sufficient to indicate that the claimed error in fact took place and caused a tax penalty, he is now on notice that his claim may be dismissed on the merits under Fed.R.Civ.P. 56 without further notice. See Celotex Corp v. Catrett, 477 U.S. 317, 326, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Jacobson v. Cohen, 151 F.R.D. 526 (SDNY 1993).
The motion to dismiss is denied.
Dated: White Plains, New York
July 5, 1994
VINCENT L. BRODERICK, U.S.D.J.