The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
James M. Murray ("Murray") and Joe Rybkiewicz ("Rybkiewicz")
(collectively, the "plaintiffs"), who are proceeding pro se,
commenced this action against Hy Cite Corporation/Royal Prestige
("Hy Cite/Royal Prestige") and Rita Congdon ("Congdon")
(collectively, the "defendants") in the Supreme Court of the
State of New York, Suffolk County. The plaintiffs alleged that
defendant Hy Cite/Royal Prestige entered into a exclusive
dealings contract with the plaintiffs, by the terms of which Hy
Cite/Royal Prestige gave the plaintiffs the exclusive rights to
sell china, crystal, cookware, and flatware distributed by the
defendants. The complaint further alleged that defendant
Congdon, an employee or agent of defendant Hy Cite/Royal
Prestige, terminated the contract without giving the plaintiffs
60 days notice as was required by the terms of their agreement.
The Suffolk County Supreme Court (Gerard, J.) dismissed the
action on October 13, 1998, on the ground that it had been
brought pro se on behalf of two corporations, which cannot
proceed pro se pursuant to New York Civil Practice Law and
Rules ("CPLR") section 321(a). The plaintiffs filed a motion for
reconsideration, which the Suffolk County Supreme Court
considered as a motion for summary judgment, and which that
court denied in a decision and order dated March 18, 1999.
From March 18, 1999, through March 27, 2000, the procedural
history of the case is vague, as neither the plaintiffs nor the
defendants have submitted papers or decisions explaining the
proceedings that may have occurred during that period in state
court. However, it appears that on March 27, 2000, the Supreme
Court issued another decision denying the plaintiffs' motion for
reargument of a previous motion.
On April 6, 2000, the plaintiffs filed a notice of appeal to
the Appellate Division, Second Department, from the March 27,
2000 order denying their motion for reargument. The plaintiffs
moved for a summary reversal of the March 27, 2000 order and for
sanctions. In a decision and order dated June 2, 2000, the
Second Department denied the plaintiffs' motion. The plaintiffs
then moved to reargue their motion for summary reversal and
sanctions, and the Second Department denied that motion in a
decision and order dated September 11, 2000.
On or about September 19, 2000, the plaintiffs filed a motion
in the Appellate Division, Second Department, requesting relief
from the March 27, 2000 order of the Supreme Court pursuant to
Rule 60(b)(1) of the Federal Rules of Civil Procedure
("Fed.R.Civ.P."). The defendants filed opposition papers as well
as a cross motion, and in a decision and order dated November
14, 2000, the Second Department, on its own motion, dismissed
the plaintiffs appeal for failure to timely perfect.
A civil action may be removed from state court to federal
court when the removing party complies with the procedure
established by Congress. See 28 U.S.C. § 1441-1452. A case
that has been removed other than in accordance with the
requirements of the removal statute should be remanded to state
court. See Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 643
(2d Cir. 1993). A party seeking remand based on a defect in the
removal procedure must move for that relief within 30 days after
the notice of removal has been filed. See 28 U.S.C. § 1447(c);
Hamilton, 5 F.3d at 643. Here, the plaintiffs filed their
notice of removal on November 27, 2000, and the defendants filed
their motion for remand on December 18, 2000. The defendants'
motion for remand was filed within thirty days of the
plaintiff's notice of removal and is properly before this Court.
See 28 U.S.C. § 1447(c); Hamilton, 5 F.3d at 643.
The burden of establishing that a case has been properly
removed is solely on the removing party. See Varela v.
Flintlock Construction, Inc., 148 F. Supp.2d 297, 298 (S.D.N.Y.
2001); Steinberg v. Nationwide Mutual Ins. Co., 91 F. Supp.2d 540,
543 (E.D.N.Y. 2000); Nicola Prod. Corp. v. Showart
Kitchens, Inc., 682 F. Supp. 171, 173 (E.D.N.Y. 1988). Here, the
Court finds that the plaintiffs have not met that burden. First,
only defendants have the authority to remove an action to
federal court. While several sections of the United States Code
permit defendants to remove actions brought against them in
state court, see 28 U.S.C. § 1441, 1446(a), no section gives
plaintiffs that authority. Hamilton, 5 F.3d at 643 (affirming
an order to remand to state court because the plaintiff lacked
the authority to remove his own action). The plaintiffs in this
case were the plaintiffs in the state-court case, and therefore,
they lack the authority to remove the action. See
28 U.S.C. § 1441(a), (b), 1443(a); Hamilton, 5 F.3d at 643.
Second, this case was not properly removed, because the notice
of removal was not filed within the required period of time. A
defendant seeking removal of a civil action from state court
must file a notice of removal within 30 days after receiving the
initial pleadings. 28 U.S.C. § 1446(b). Failure to file within
the 30-day filing period leads to an automatic defeat of the
removal petition. See Bertrand v. Vingan, 899 F. Supp. 1198,
1199 (S.D.N.Y. 1995) (noting that a defendant seeking removal
must strictly comply with the statutory requirements); Nicola
Prod. Corp., 682 F. Supp. at 172.
Moreover, even if the plaintiff had complied with the
procedural aspects of the removal statute, this Court would
nevertheless remand the case. First, the plaintiffs are
attempting to remove a case from a decision and order of the
Appellate Division, Second Department. That decision is a final
judgment, and as such, may not be removed to this Court to be
relitigated. See Four Keys Leasing & Maint. Corp. v. Simithis,
849 F.2d 770, 774 (2d Cir. 1988) (holding that granting
permission to remove a case from a final statecourt judgment
would subject the ...