United States District Court, W.D. New York
June 3, 2005.
JOHN-JOSEPH FORJONE, et al., Plaintiffs,
MICHAEL O. LEAVITT, et al., Defendants.
The opinion of the court was delivered by: RICHARD ARCARA, District Judge
Plaintiffs John-Joseph Forjone and Samantha Marie Forjone
commenced the instant action pro se on April 22, 2005, pursuant
to 42 U.S.C. § 1983, claiming various violations of their
constitutional rights by the defendants. On May 23, 2005,
plaintiffs filed a notice of removal regarding two cases
currently pending in the state court.*fn1 The first case
appears to be a criminal misdemeanor action pending in the Town
of Clarendon Justice Court (the "criminal case"). The second case
appears to be a tax certiorari case pending in the New York State
Supreme Court for the County of Orleans (the "tax certiorari
case"). Counsel for the defendants Town of Clarendon, Paul R.
Nicosia and Patricia Beadle have filed a letter asking that the
Court order a summary remand of the two removed state cases.
Preliminarily, the Court notes that plaintiffs should have
removed these two cases separate and apart from the instant case,
as well as separate and apart from each other. In any event, for the reasons stated below, the Court
finds that these cases were improperly removed and must therefore
Under 28 U.S.C. § 1446(c)(4), the district court must order
summary remand of any removed criminal case if it clearly appears
on the face of the notice, and any exhibits annexed thereto, that
removal should not be permitted. Here, the Court finds that
summary remand of the criminal case is appropriate. The notice of
removal regarding the criminal case was untimely filed. See
28 U.S.C. § 1446(c)(1) (stating that notice of removal must be filed
no later than 30 days after arraignment in State court, or
anytime before trial, whichever is earlier). According to the
notice of removal, plaintiffs first appearance in the criminal
case was February 14, 2005, more than 30 days before the filing
of the notice of removal.
In addition, plaintiffs have failed to allege any facts
demonstrating that removal of this criminal case is appropriate.
See 28 U.S.C. § 1443. Plaintiffs have failed to allege facts
showing that they were denied a right arising under a federal law
"providing for specific civil rights stated in terms of racial
equality." Johnson v. Mississippi, 421 U.S. 213, 219 (1975).
Nor have they alleged facts showing that they have been "denied
or cannot enforce" such federal rights in the state court. Id.
The Court further finds that the tax certiorari case should be
remanded. First, the tax certiorari case was commenced in the
state court by the plaintiffs and therefore cannot be removed by
them. 28 U.S.C. § 1446(a) (removal statute applies to state court
defendants, not plaintiffs). Second, plaintiffs' notice of
removal was untimely filed. See 28 U.S.C. § 1441(b) (stating
that notice of removal must be filed within 30 days of service of
process in state court action). Though not specifically stated in
the notice, it is apparent that the tax certiorari case has been
pending for significantly longer than 30 days. Finally, although
not clear from the notice of removal, it would appear that the
relief sought by the plaintiffs in this Court regarding the tax
certiorari case would be barred by the Tax Injunction Act,
28 U.S.C. § 1341.
Accordingly, for the reasons stated, the Court hereby remands
the criminal case and tax certiorari case to their respective
state courts. Pursuant to 28 U.S.C. § 1447(c), the Court further
orders that plaintiffs pay costs and any actual expenses,
including attorneys' fees, incurred as a result of the removal.
The Clerk of Court shall mail a certified copy of this Order to
the clerks of the respective state courts.
IT IS SO ORDERED.