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GEHM v. NEW YORK LIFE INS. CO.

February 11, 1998

DONALD GEHM and LINDA GEHM, Plaintiffs, against NEW YORK LIFE INSURANCE COMPANY and O.I.G. AGENCIES, INC., Defendants.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Presently before the Court is the motion of defendant New York Life Insurance Company, Inc. ("New York Life") to remand this action to state court and plaintiffs' cross-motion for a writ pursuant to the All Writs Act, 28 U.S.C. § 1651, to remove the action. Defendant O.I.G. Agencies, Inc. ("OIG") has not responded to either motion.

 Plaintiffs commenced this action in state court on February 17, 1997, seeking relief from their employer, OIG and New York Life, in connection with the termination of their health insurance benefits coverage due to OIG's alleged failure to pay its health insurance premiums to New York Life. On October 10, 1997, New York Life filed and served its motion for summary judgment as to all plaintiffs' claims and the cross-claims asserted by OIG. Among the grounds supporting dismissal, New York Life asserted that plaintiffs' claims were preempted by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1101 et seq. In response to the summary judgment motion, plaintiffs attempted to remove the action to this Court by filing a Notice of Removal on November 19, 1997. On December 18, 1997, New York Life timely moved to remand.

 Plaintiffs' initial attempt at removal was ill-advised because only defendants, not plaintiffs, may remove a state court action to federal court. The statute setting forth the substantive basis for removal provides:

 
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

 28 U.S.C. § 1441(a) (emphasis added). Similarly, the statute setting forth the procedure for removal states:

 
A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendants in such action.

 28 U.S.C. § 1446(a) (emphasis added).

 Not only are the removal statutes clear and unambiguous, the case law interpreting them overwhelmingly supports the proposition that only a defendant may remove an action from state court. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 105, 85 L. Ed. 1214, 61 S. Ct. 868 (1941) (removal privilege limited to defendants only); Ballard's Serv. Ctr., Inc. v. Transue, 865 F.2d 447, 449 (1st Cir. 1989) (statute "authorizes removal only by defendants . . . . Plaintiffs cannot remove"); Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855, 863 (2d Cir. 1988) ("quite simply, a party who is in the position of a plaintiff cannot remove" under the removal statute); In re Estate of Duane, 765 F. Supp. 1200, 1201 (S.D.N.Y. 1991) (only defendant is entitled to remove); Scott v. Communications Servs., Inc., 762 F. Supp. 147, 149-50 (S.D. Tex. 1991) (removal statute contemplates use only by defendant), aff'd, 961 F.2d 1571 (5th Cir. 1992); Knight v. Hellenic Lines, Ltd., 543 F. Supp. 915, 918 (E.D.N.Y. 1982) (only defendants have option to remove). In short, the Court agrees with Judge Kaplan who recently observed that "every case to consider the question [of removal] has held that defendants, and only defendants, may remove." Geiger v. Arctco Enterprises, Inc., 1996 U.S. Dist. LEXIS 1741, No. 95-8589, 1996 WL 71503, *1 (S.D.N.Y. Feb. 16, 1996).

 Plaintiffs do not attempt to argue that their initial attempt at removal was proper. Rather, they note that federal courts have exclusive jurisdiction over ERISA suits and, because their suit is fairly characterized as an ERISA suit, this Court has exclusive jurisdiction. Conversely, the state court would be forced to dismiss the action before it because of its corresponding lack of jurisdiction. Plaintiffs conclude that this Court should exercise its discretion under the All Writs Act, 28 U.S.C. § 1651 and order the case removed from state court in the interests of judicial economy and to protect the integrity of ERISA's preemption clause. Plaintiff's argument, though it has a common sense appeal, must be rejected because the Court lacks authority under the All Writs Act to remove this action.

 The All Writs Act provides that "the Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651. The scope of the All Writs Act, however, does not contemplate the disregard of clear statutory requirements, as set forth in the removal statutes:

 
Where a statute specifically addresses a particular issue at hand, it is that authority and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.

 Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43, 88 L. Ed. 2d 189, 106 S. Ct. 355 (1985). Given the straightforward directive of the removal statutes expressly governing this matter, ...


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