whether a new suit exists for removal purposes constitutes a federal question.
An order to show cause or other paper creating a valid basis for federal judicial jurisdiction which did not previously exist would support removal under the second paragraph of 28 USC 1446(b). But no new ground for jurisdiction was established by the order to show cause.
Since 1988 the citizenship of a decedent, not the executor, is the only citizenship pertinent for diversity purposes by virtue of Public Law 100-702, 102 Stat 4646 (1988), adding 28 USC 1332(c)(2). See Liu v. Westchester County Medical Center, 837 F. Supp. 82 (1993). Substitution of the named plaintiff's executor as plaintiff thus has no impact on the presence or absence of federal jurisdiction.
Even assuming that diversity of citizenship was established, such a ground for removal would not have been created for the first time by the order to show cause. An issue concerning the propriety of removal cannot be treated as a federal question of the kind which itself authorizes removal. Were such bootstrap removal recognized, mid-litigation removals would cause havoc in both federal and state tribunals and encourage obfuscation. Such an interpretation of 28 USC 1331 has no support and would be contrary to the objectives set forth in Fed.R.Civ.P. 1 (the "just, speedy and inexpensive" determination of every action).
Judge Fox found that the removing defendant has provided no proof of service of the notice of removal on plaintiff's counsel, who denies receiving such service. Because under 28 USC 1446 a notice of removal is effective without judicial order unless a remand is ordered, it is critical that removing parties honor procedural safeguards set forth in that statute such as notice to opposing counsel. See Ullah v. FDIC, 852 F. Supp. 218 (SDNY 1994).
Under 28 USC 1446(a), as pointed out by Judge Fox in his Report and Recommendation at 4, note 2, without service, a removal is not properly effected. See La Maina v. Brannon, 804 F. Supp. 607, 612-13 (DNJ 1992); Donlan v. F.H. McGraw & Co, 81 F. Supp. 599 (SDNY 1948).
The removing defendant asserts that service of the notice of removal was made but that a pro se clerk "seemed to ask why" the papers were mailed, thus discouraging filing of proof of service at the time. A proof of service is attached to the Objections as Exhibit H, but the dating of it as of September 9, 1993 is typed with a different emphasis producing a lighter impression than the rest of the document. Under these circumstances, Judge Fox's finding of lack of service is buttressed rather than impeached and is accepted. See generally Synanon Church v. United States, 261 U.S. App. D.C. 13, 820 F.2d 421, 428 (DC Cir 1987); Welsh v. United States, 844 F.2d 1239, 1244-45 (6th Cir 1988); Stephens v. South Atlantic Canners, 848 F.2d 484, 487 (4th Cir 1988).
As indicated in the Report and Recommendation at 3, note 1, the notice of removal refers to diversity of citizenship as a basis for jurisdiction but fails to set forth the citizenship of the parties, instead mentioning "domicile" and a return address at a post office box in Hoboken, New Jersey. This is inadequate under the diversity statute and vitiates the notice of removal. See America's Best Inns v. Best Inns, 980 F.2d 1072, 1074 (7th Cir 1992); Smith v. Dealers Transit, 239 F. Supp. 605 (D Tenn 1965).
There is evidence that defendants lived in the Bronx as of 1985 (Report and Recommendation at 1); even in his papers in support of removal, the removing defendant provides only a P.O. Box address in New Jersey. Dkt No 9, filed Jan 27, 1994.
The removing defendant recognizes but seeks to explain his reticence as to his residence by asserting without specific details or support that plaintiff "has threatened us numerous times at gun point," Objections p. 3. The notice of removal contains no assertion of a New Jersey residential address even with its full location omitted. Nor does the removing defendant report any action taken as a result of the alleged threats; if such threats have in fact occurred, other action not within the jurisdiction of this court would obviously be called for. The total effect of these circumstances is to confirm rather than refute the inadequacy of the showing of diversity, which should in any event be made at the time of removal rather than buttressed later. See Interstate Circuit v. United States, 306 U.S. 208, 225-26, 83 L. Ed. 610, 59 S. Ct. 467 (1939) (failure to provide adequate explanation for facts otherwise giving rise to adverse inference).
Under 28 USC 1446 all defendants must join in removal unless excused by special circumstances not claimed here. Johnson v. Helmerich & Payne, 892 F.2d 422 (5th Cir 1990); Radi v. Travelers Ins Co's, 1992 WL 131048, 1992 U.S. Dist. LEXIS 8426 (SDNY 1992). The notice of removal is filed in the name of only one of the two defendants, Louis Jerome Adler.
Judge Fox recommended that $ 250 in costs be awarded to plaintiff. The award is justified in light of the numerous improper aspects of the removal effected here.
The removing defendant in his opposition requests the "COURT to appoint an attorney to represent me in this matter and to review 'EVERYTHING'" that has transpired under both cases in both Supreme Court and Federal Court, asserting that "Judge Fox appeared to be extremely prejudice toward me, a pro-se litigant." Opposition at 6. There is insufficient indication of merit to warrant such relief. See Alston v. Bythedale Child Hospital, 1994 WL 150951, 1994 U.S. Dist. LEXIS 5034 (SDNY Apr 12, 1994). If appointment of counsel to deal with an issue of removal was to be routinely granted, delay and expense associated with removal and/or remand stage would be substantially increased, contrary to the objectives of Fed.R.Civ.P. 1 as quoted above.
Litigation of this type, pursued to the bitter end, may result in losses to all participants far in excess of any benefits potentially available to the winning party. It would be in the interest of all parties to resolve this dispute by mediation rather than litigation, were the extreme bitterness revealed in the papers able to be surmounted. See Alpert v. Kramer, 145 F.R.D. 318 (SDNY 1993).
Dated: White Plains, N.Y.
September 6, 1994
/s/ John S. Martin, USDJ for
VINCENT L. BRODERICK, U.S.D.J.