United States District Court, S.D. New York
June 1, 2005.
JOHN McGOWAN, DOREEN ORZO McGOWAN and MARIO JUAREZ, Plaintiffs,
MALCOM HOFFMEISTER, JOYCE DICAMILLO HOFFMEISTER, DOM'S CONSTRUCTION INC., and ELIZAETH THOMPSON, Defendants.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge
OPINION & ORDER
On April 7, 2005, Plaintiffs, John McGowan, Doreen Orzo
McGowan, and Mario Juarez, moved to remand the above-entitled
action to New York State Supreme Court, Bronx County, pursuant to
28 U.S.C. § 1447(c). The matter was sub judice following oral
argument on May 24, 2005. For the reasons set forth below,
Plaintiffs' motion is GRANTED.
On July 7, 2003, Plaintiffs filed the instant Complaint against
Defendants Malcolm and Joyce Hoffmeister (the "Hoffmeisters"),
residents of Greenwich, Connecticut, Elizabeth Thompson
("Thompson"), a resident of Manhattan, New York, and Dom's
Construction ("Dom"), a construction company incorporated in New
York. (Compl. at ¶¶ 2 38, Ind. No. 20725/03, dated Jul. 7,
2003.) The Complaint consists of 12 causes of action for
negligence and violation of New York and Connecticut labor laws,
and one cause of action by Doreen Orzo McGowan for loss of
On July 17, 2004, the Hoffmeisters filed an Answer which,
inter alia, denied certain material allegations alleged in
the Complaint. (Hoffmeister Ans.) Dom neither answered, objected,
nor moved to dismiss the Complaint. Thompson appeared pro se and
filed an answer on July 11, 2003. (Thompson Ans.)
After review of discovery, the Hoffmeisters moved to dismiss
the Complaint, and any cross-claims, and argued that as residents
of Connecticut, they were not subject to personal jurisdiction in
the New York Supreme Court. (Dec. & Order, McGowan v.
Hoffmeister, No. 20725/2003, at 3.) After the motion to dismiss was filed, the
Hoffmeisters also moved to amend their Answer to include lack of
personal jurisdiction as an affirmative defense. McGowan v.
Hoffmeister, 792 N.Y.S.2d 381, 382 (1 Dep't. 2005).
On December 24, 2003, Justice Bowman denied Hoffmeisters'
motion to dismiss, but granted the motion to amend with leave to
renew their motion to dismiss at the conclusion of discovery.
Id. Plaintiff appealed to the Appellate Division, First
Department, on February 5, 2004. (Not. of Appeal, Ind. No.
20725/03, dated Feb. 5, 2004).*fn1 Meanwhile, Hoffmeisters'
joined Dom, and an additional party, David Comerico, as
While Plaintiffs' appeal was pending, the parties proceeded
with discovery. On March 3, 2003, Justice Bowman ordered
Plaintiffs to file a note of issue on or before September 3,
2004, certifying that discovery was complete and the case was
ready for trial. (Aff. Manuel Romero, Att'y for Pls., at ¶
Plaintiffs' claim against pro se Thompson was dismissed on
February 17, 2005 and, subsequently, on March 16, 2005, twenty
months after the case was originally filed, the Hoffmeisters
sought to remove the action to the Southern District of New York
pursuant to 28 U.S.C. § 1446. (Dckt. 1.) The removal was based
upon diversity of citizenship, e.g., New York Plaintiffs and
Connecticut Defendant. On April 11, 2005, Plaintiffs filed the
instant motion to remand the case back to state court.
Plaintiffs' motion to remand asserts that Defendants' removal
of this action was untimely under 28 U.S.C. § 1446(b), which
provides in pertinent part that:
. . . . If the case stated by the initial pleading is
not removable, a notice of removal may be filed
within thirty days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it
may first be ascertained that the case is one which
is or has become removable, except that a case may
not be removed on the basis of jurisdiction conferred
by section 1332 of this title more than 1 year after
commencement of the action.
28 U.S.C. § 1446(b) (emphasis added). In addition, the Second
Circuit has instructed that a court is required to "construe the removal statute narrowly, resolving
any doubts against removability." Somlyo v. J. Lu-Rob Enters.,
932 F.2d 1043
, 1045-1046 (2d Cir. 1991); see also Wilds v.
United Parcel Serv., Inc., 262 F. Supp. 2d 163
, 176 (S.D.N.Y.
2003) ("The defendant's right to remove and the plaintiff's right
to choose the forum are not equal, and uncertainties are resolved
in favor of remand.") (citation omitted). As such, the burden is
on the party which removed the action to federal court to
demonstrate a (a) jurisdictional basis, (b) compliance with the
statutory requirements, and "there is nothing in the removal
statute that suggests that a district court has discretion to
overlook or excuse prescribed procedures." Smith v. Kinkead,
No. Civ. 10283, 2004 WL 728542, at *1 (S.D.N.Y. Apr. 5, 2004)
Here, while it is uncontested that the removal to federal court
was beyond the one-year limitation imposed by Section 1446(b)
and, thus, procedurally defective, the Hoffmeisters argue that
Plaintiffs' behavior is of such a nature as to permit the Court
to grant an equitable extension. In particular, the Hoffmeisters
claim that Plaintiffs dismissed Thompson only after removal of
the action to federal court was procedurally barred. These
arguments are (1) belied by the record and (2) contradicted by
the clear intent and purpose of the removal statute.
First, the Hoffmeisters' argument ignores the presence of the
non-diverse corporate defendant, Dom, in this action. The
Hoffmeisters correctly note that Plaintiffs' time to enter a
default judgment against Dom has expired.*fn3 However, Dom,
for the moment at least, remains a party to this action even
though diversity is determined at the time of filing, not years
later, so whether its in or out now really does not matter. See
e.g., Brooks v. Clark, 119 U.S. 502, 511-13, 7 S. Ct. 301
(1886) (defaulting party and judgment remain part of removed
action); see also Kellam v. Keith, 144 U.S. 568,
12 S. Ct. 922 (1892) (in removal actions, diversity of citizenship must
exist at the time complaint is filed). Dom's presence defeats
complete diversity as required under 28 U.S.C. § 1332, because
Plaintiffs are also New York residents. See generally K.M.B.
Warehouse Distributors, Inc. v. Walker Mfg. Co., 61 F.3d 123 (2d
Cir. 1995) ("there must be complete diversity of citizenship
between all plaintiffs and all defendants named in all claims in
order for jurisdiction over any claim to be based upon diversity
of citizenship.") (citing to Carden v. Arkoma Assocs.,
494 U.S. 185, 187 (1990); Strawbridge v. Curtiss, 7 U.S. (3 Cranch)
267, 267, 2 L.Ed. 435 (1806)).
Second, in accordance with Section 1446(b) and the Supreme
Court's holding in Caterpillar Inc. v. Lewis, "no case . . .
may be removed based on diversity more than 1 year after
commencement of the action." 519 U.S. 61, 62 (1996). The one-year
limitation imposed by Section 1446(b) was designed to limit "the
opportunity for removal after substantial progress has been made
in state court." Id. at 75 n. 12 (citing to H.R. Rep. No.
100-889, p. 72, 1988 U.S. Code Cong. & Admin. News pp. 5982,
6032).*fn4 Congress recognized that this provision would
produce "a modest curtailment in access to diversity
jurisdiction," In re Rezulin Prod. Liab. Litig., No. 00 Civ.
2843, 2003 WL 21355201, at *2 (S.D.N.Y. Jun. 04, 2003), but that
such a limitation was necessary to "prevent the delay,
inefficiency, and unfairness resulting from latestage, forum
shopping remand motions." Pierpoint v. Barnes, 94 F.3d 813, 817
(2d Cir. 1996).*fn5
This litigation has proceeded for over twenty months, through a
motion to dismiss and an appeal to the Appellate Division, First
Department. The state supreme court has issued discovery orders,
ruled on various dispositive motions including, but not limited
to, the Hoffmeisters' motion to dismiss, held status conferences
and required the filing of a note of issue. To start anew after
"substantial progress in state court," would contravene the clear
intent of Congress and impose substantial and unnecessary burdens
on the Plaintiffs. See, e.g., H.R. Rep. No. 100-889 at 72,
U.S. Code Cong. & Admin. News 1988, pp. 6032, 6033.
Therefore, in accordance with Section 1446, Plaintiff's motion
to remand the case to New York State Supreme Court, Bronx, New
York is hereby GRANTED.
For the aforementioned reasons, Plaintiffs' motion to remand
the above-entitled action to New York State Supreme Court, Bronx
County, is GRANTED. The case of McGowan et al v. Hoffmeister et al, 05 Civ. 2879,
is ORDERED transferred to the Supreme Court of the County of
Bronx, State of New York and the Clerk of the Court is so
instructed. The Clerk of the Court is also instructed to close
this motion and all other open motions and remove this case from
IT IS SO ORDERED.