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ADLER v. ADLER

September 6, 1994

MILDRED ADLER, Plaintiff,
v.
LOUIS JEROME ADLER and DOROTHY ADLER, Defendants.


BRODERICK


The opinion of the court was delivered by: VINCENT L. BRODERICK

VINCENT L. BRODERICK, U.S.D.J.

 I

 This family dispute presents several questions concerning procedure and criteria for removal of state court suits to federal district courts under 28 USC 1446. For the reasons set forth in the Report and Recommendation of United States Magistrate Judge Mark D. Fox dated May 5, 1994, which is approved and adopted, and the additional reasons set forth below, the case is remanded to the Supreme Court of the State of New York, Rockland County.

 II

 The suit was originally filed in 1985 in the Supreme Court, Rockland County. What, if anything, was done to pursue it in the immediately ensuing years is not clear. On July 23, 1993 an order to show cause was filed in state court seeking substitution of Daniel Adler as executor for the estate of Mildred Adler. The application was granted on November 1, 1993.

 Meanwhile, an allegedly un-served notice of removal had been filed by defendant Louis Adler on September 9, 1993. The removal was based on diversity of citizenship under 28 USC 1332. The removal is also sought to be supported on the ground that an order to show cause in a state court suit seeking to substitute an executor as plaintiff, presents a federal question under 28 USC 1331.

 A major part of the underlying controversy relates to who is the proper executor for a decedent's estate and whether undue influence was brought to bear to cause the decedent to make certain property dispositions.

 III

 Plaintiff's motion to remand was referred to United States Magistrate Judge Mark D. Fox, who by Report and Recommendation dated May 5, 1994 recommended that the motion be granted on the ground that the removal notice was untimely under 28 USC 1446, which requires that a notice of removal be filed within thirty (30) days of receipt of the initial pleading involved. Judge Fox found that in overruling on April 27, 1988 an application to dismiss the state court litigation for lack of service, the state court had necessarily concluded that the complaint had been served in 1986.

 The removing defendant asserts that no notice of the state court hearing on service was provided and states that the hearing was "kept secret" at the time although obviously discovered later. Opposition at 6. The remedy of requesting reconsideration of the state court ruling was never invoked in state court and cannot be raised here.

 The notice of removal was filed with the Pro Se office of this court on or about September 9, 1993, long after the thirty (30) day deadline under 28 USC 1446.

 Pre-removal state court decisions, as much as federal decisions after removal, should be followed unless a valid reason for departure from them is established. Istituto v. Sperti Products, 47 F.R.D. 310, 312 (SDNY 1969). Untimeliness of the removal by a margin of several years is hardly remediable based upon claims of excusable neglect. See Gallagher v. Donald, 803 F. Supp. 899, ...


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