The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Petitioner Andrea Farace ("Farace") has moved for an order
remanding this action to the Supreme Court of the State of New
York, New York County pursuant to 28 U.S.C. § 1447(c) and
alternately requests that this Court abstain from the proceedings
pursuant to 28 U.S.C. § 1334(c) or grant an equitable remand
pursuant to 28 U.S.C. § 1452(b). For the reasons set forth below,
the motion is granted.
Prior Proceedings and Background
On June 25, 2003, a money judgment was entered in favor of
respondent John S. Pereira ("Pereira"), in his capacity as
Trustee of Trace International Holdings, Inc. and Trace Foam Sub,
Inc., and against Farace and other defendants in the action
captioned Pereira v. Cogan, 00 Civ. 619. Approximately two
weeks later, on July 11, 2003, the Federal Judgment was docketed
by respondent in the New York County Clerk's Office as Judgment
No. 1723113. The effect of such docketing was to give the Federal
Judgment the force and effect of a state court judgment. See
N.Y. CPLR § 5018(b).
Following entry and docketing of the Federal Judgment, Pereira
commenced various enforcement proceedings against Farace under
Article 52 of the CPLR. Pereira's actions included attempting to
serve restraining notices upon Farace and upon Citigroup,
Independence Holdings Partners LLC ("Independence") and Smith Barney under CPLR § 5222, directing the United States
Marshals Service ("USMS") to serve executions upon these
garnishees under CPLR § 5232, and causing the Sheriff of the City
of New York (the "Sheriff") to attempt to serve an income
execution upon Farace at Smith Barney and at Citigroup in New
York under CPLR § 5231.
By order to show cause and verified petition, Farace commenced
a special proceeding on March 1, 2004 in the Supreme Court, New
York County to vacate the restraining notices, executions and
income execution under CPLR §§ 5239 and 5240 on the grounds that
Pereira, the USMS and the Sheriff failed to comply with the
service requirements of Article 52 of the CPLR. The Honorable
Rolando T. Acosta granted a temporary restraining order dated
March 1, 2004, prohibiting Pereira and all of the garnishees from
taking any steps to transfer or deliver any funds or other
property under the executions or the income execution. The
application was made returnable in the state court for March 10,
By Notice of Removal, dated March 9, 2004, Pereira removed the
Special Proceeding to this Court under 28 U.S.C. § 1446(d).
Farace moved by order to show cause on March 16, 2004 to remand
the action to the Supreme Court. The parties then agreed that the
temporary restraining order previously issued by Justice Acosta
shall remain in place through at least March 26, 2004, pending
Farace's presentation of its application to remand On March 25, 2004, Pereira filed an Amended Notice of Removal.
On March 31, 2004, argument was heard on the motion and it was
marked fully submitted. On April 5, 2004, this Court issued an
order extending the temporary restraining order issued by Justice
Acosta pending the determination of Farace's motion.
According to the initial Notice of Removal, Pereira asserts
that removal is proper under 28 U.S.C. § 1441 because this Court
has "federal question jurisdiction" because "this action arises
from and is directly related to the action commenced
approximately four years ago in this Court against Farace [which]
resulted in the granting of a final judgment" and because "this
action arises under Federal Rule of Civil Procedure 69 and
federal case law which gives this court jurisdiction to supervise
the enforcement of the Federal judgment . . ."
In its Amended Notice of Removal and opposition brief, two
additional grounds are provided for removal: (1) removal is
proper under 28 U.S.C. § 1442(a)(3) because Pereira is an officer
of the courts of the United States and the order to show cause
challenges actions taken by him under color of his office or in
the performance of his duties; and (2) removal is proper under
28 U.S.C. § 1452(a) because it relates to a case under Title 11 of
the United States Code over which the United States District
Court for the Southern District of New York has jurisdiction pursuant to
28 U.S.C. § 1334(b).
"Removal jurisdiction must be strictly construed, both because
the federal courts are courts of limited jurisdiction and because
removal of a case implicates significant federalism concerns."
In re NASDAQ Market Makers Antitrust Litigation, 929 F. Supp. 174,
178 (S.D.N.Y. 1996) (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109 (1941)) ("Due regard for the rightful
independence of state governments, which should actuate federal
courts, requires that they scrupulously confine their own
jurisdiction to the precise limits which the statute has
defined."); see also Deming v. Nationwide Mutual Ins. Co.,
No. Civ.A. 3:03CV1225, 2004 WL 332741, at *1 (D. Conn. Feb. 14,
2004) ("federal courts construe the removal statute narrowly,
resolving any doubts against removability.") (quoting Somlyo v.
J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991)).
"The burden is on the removing party to prove that it has met
the requirements for removal." Codapro Corp. v. Wilson,
997 F. Supp. 322, 325 (E.D.N.Y. 1998) (quoting Avon Products, Inc. v.
The A/J Partnership, 89 Civ. 3743/8032, 1990 WL 422416, at *1
(S.D.N.Y. March 1, 1990)); see also NASDAQ Market Makers,
929 F. Supp. at 178.
Section 1441(b) Section 1441(b) provides that a defendant may remove any "civil
action of which the district courts have original jurisdiction
founded upon a claim or right arising under the Constitution,
treaties or laws of the United States . . ." Removal pursuant to
28 U.S.C. § 1441(b) is "improper unless a federal question is an
essential element of a plaintiff's cause of action, and is
apparent on the face of the plaintiff's well-pleaded complaint
without reference to the answer or the removal petition." Hodges
v. Demchuk, 866 F. Supp. 730, 732-33 (S.D.N.Y. 1994); see
also Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475
The petition filed by Farace in state court alleges several
statutory causes of action under New York law. The order to show
cause alleges that "judgment should be entered pursuant to CPLR
§§ 5239 and 5240 vacating the Income Execution, the Executions
and the Restraining Notices" on the grounds that such notices and
executions were not served in accord with CPLR §§ 5222, 5231 and
5232. In addition, Farace alleges that service on him is invalid
as a matter of law under the Convention on the Service ...