United States District Court, E.D. New York
September 16, 2005.
NEWMAN and CAHN, LLP, Plaintiff,
MICHAEL SHARP, Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This matter comes before the Court on a Notice of Removal
("Notice") from the Supreme Court of the State of New York,
County of Suffolk (Index No. 24209/2003) filed on August 31,
2005, by Linda Sharp ("petitioner"). The parties named in this
case are Newman & Cahn, LLP, plaintiff, and Michael Sharp,
defendant. The petitioner Linda Sharp is not a party in this
case. The Petitioner asserts, among other things, due process
violations. On September 9, 2005, Newman and Cahn, LLP, timely moved to remand the action back to the Supreme Court of
the State of New York, County of Suffolk. For the reasons set
forth below, the Court denies the Petition of Removal and remands
the case to the Supreme Court of the State of New York, County of
It is well-settled that the Court is required to read the
petitioner's pro se submissions liberally. See Hughes v.
Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980);
Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972). Further, at this stage of the proceedings, the
Court assumes the truth of the documents submitted by the
petitioner. See Hughes, 449 U.S. at 10.
As can best be discerned from petitioner's Petition for Removal
and attached exhibits, the underlying civil action that was
removed from the Supreme Court, County of Suffolk, relates to the
efforts by the law firm, Newman and Cahn LLP (the "law firm"), to
obtain the reasonable and fair value of their legal services
performed for a former client, the defendant Michael Sharp
("Michael"). Apparently, the law firm entered into a retainer
agreement with Michael to provide legal services in a pending
divorce action between Michael and the petitioner Linda Sharp.
Prior to the culmination of the divorce action Michael Sharp
discharged the law firm.
The Petitioner, who is a non-party to the state court action,
alleges that "the state court cannot, is unwilling, or that an
extra-judical climate exists that is prejudicial to petitioner['s] civil rights and the enjoyment of her
constitutional rights because racial, ethnic, or religious, or
other bias." Petitioner further claims that the law firm has
violated several federal statutes, including 18 U.S.C. § 1961,
28 U.S.C. § 1343, 42 U.S.C. §§ 126, 1981-85.
A. Removal Statute
A non-party has no authority to seek removal under the removal
statutes. See 28 U.S.C. § 1441, 1446(a). Similarly, an
individual that claims to be a real party in interest has no
authority to seek removal. The statutes that provide authority to
remove actions to federal court only allow for removal "by the
defendant or defendants." Id.; see, e.g., Geiger v. Arctco
Enterprises, Inc., 910 F. Supp. 130, 131 (S.D.N.Y. 1996) ("It is
clear that the right of removal is vested exclusively in
defendants."); Adams v. Adminastar Defense Services, Inc.,
901 F. Supp. 78, 79 (D.Conn. 1995) (only a defendant, who is by
implication a party in state court, has standing to remove);
Conway v. Delgado, No. 92-0905, 1992 WL 189428, *2 (D.D.C. July
21, 1992) (only defendants have standing to remove); Macaluso v.
Mondadori Publishing Co., 527 F. Supp. 1017, 1018-19 (E.D.N.Y.
1981) (remanding a case where neither of the named defendants
joined in the petition for removal); Kane v. Republica De Cuba,
211 F. Supp. 855, 856-58 (D.P.R. 1962) (a nonparty who has not
formally intervened may not remove a case from state court); see
also Housing Auth. of Atlanta v. Millwood, 472 F.2d 268, 272 (5th Cir. 1973) (where an entity
has not been properly served in state court, it is not a party
and removal jurisdiction cannot be premised on its presence in
the action); In re MacNeil Bros., 259 F.2d 386, 387 (1st Cir.
B. Due Process Claim
The burden of establishing the Court's removal jurisdiction
rests squarely with the party that invokes it. See United Food
& Commerical Workers Union, Local 919 v. CenterMark Properties
Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). Moreover,
it is the duty of the Court to raise the question of removal
jurisdiction sua sponte, if appropriate. Mignogna v. Sair
Aviation, Inc., 937 F.2d 37, 40 (2d Cir. 1991). As explained
below, the petitioner has failed to meet the burden of proving a
right to removal. Therefore, under well settled principles of
limited federal jurisdiction, the Court is obligated to decline
removal and remand this case:
The first principle of Federal jurisdiction is that
it is the duty of litigants to make clear to the
Court the basis of its jurisdiction over the
proceeding. Likewise, it is the duty of the Court to
make sure that jurisdiction exists. If Federal
jurisdiction is not apparent, the Court not only
will, but must, refuse to proceed with the
determination of the merits of the controversy. . . .
This is true regardless of what stage the case may be
in, and whether the defect is called to the Court's
attention by suggestion or otherwise.
Florida Lime & Avocado Growers, Inc. v. Jacobsen,
169 F. Supp. 774, 775-76 (N.D. Cal. 1958) (three-judge panel) (citing cases),
rev'd on other grounds on direct appeal, 362 U.S. 73
see Fed.R.Civ.P. 12(h)(3); see also United Food,
30 F.3d at 301 ("[I]t is common ground that in our federal system of limited
jurisdiction any party or the court sua sponte, at any stage
of the proceedings, may raise the question of whether the court
has subject matter jurisdiction. Where jurisdiction is lacking, . . .
dismissal is mandatory." (citation and internal quotation
Also, as explained in Khalid v. Signature Leasing &
Management, Inc., No. Civ. A. 3:01-CV-1020-R, 2001 WL 880685
(N.D. Tex. July 26, 2001), a state court's purported violation of
a party's federal due process rights cannot serve as the basis
for removing the state court proceeding to federal district
[Petitioner]'s stated basis for removal is that the
state court actions involve federal questions. An
analysis of the reasons for her contention
demonstrates that they are fatally defective.
Specifically, she claims that the state courts have
ruled in a manner to deprive her of federal rights of
. . . due process.
It is apparent that the gravamen of her federal
question jurisdiction assertion is that she has been
and is being treated unfairly in the Texas state
court system. Federal question jurisdiction is not so
easily invoked. Indeed, were such a sufficient basis
for federal question jurisdiction, federal courts
would be inundated with removal cases by state court
defendants who felt that their [federal] rights were
not being observed by state court judges.
Id. at *1 (citation omitted); see also In re Al-Zaghari,
No. C 01-1154, 2001 WL 345508, at *1 (N.D. Cal. Mar. 30, 2001)
(denying petition for removal of child custody proceeding for
lack of federal jurisdiction where petitioners claimed that the
state court, in violation of federal due process, barred child
visitation without notice or a hearing); In re Pozsga, No. CIV
94-1999, 158 F.R.D. 435, 437 (D. Ariz. 1994) (finding removal petition "frivolous" and fining petitioner $100
where "the premise of the [petition] was that [petitioner's] . . .
Fourteenth Amendment due process rights were being violated by
the state court in its handling of [the underlying matter]").
In sum, it is "unmistakably clear" that the Court lacks removal
jurisdiction, Snider v. Melindez, 199 F.3d 108, 113 (2d Cir.
1999), and the Court has the authority to remand this action
sua sponte and without further notice. See Morrison v.
Seafarers Int'l Union of N. Am., AFL-CIO, 954 F. Supp. 55, 56
(E.D.N.Y. 1996) ("Where a case has been improperly removed and
the Court has no subject matter jurisdiction, the Court must
remand the case sua sponte to the state court where it
originated. . . ."); Ramirez v. Smith, No. CV 88-834, 1988 WL
36966, at *1 (E.D.N.Y. Apr. 8, 1988) (remanding case sua
sponte where it was "clear from the face of the removal
petition that [the] case was removed improperly"), aff'd mem.
867 F.2d 1424 (2d Cir. 1988); Worthy v. Schering Corp.,
607 F. Supp. 653, 657 (E.D.N.Y. 1985) (remanding case to state court
sua sponte for lack of removal jurisdiction); see also
28 U.S.C. § 1447(c) ("If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded."); cf, e.g.,
Pozsga, 158 F.R.D. at 437 (holding that there should be a sua
sponte remand for want of removal jurisdiction where the
premise for removal of the state court proceeding was the state
court's alleged violation of Fourteenth Amendment due process
rights). Having reviewed the submission of the petitioner, the Court has
discerned no other basis for the exercise of removal
B. As to The Plaintiff's Application for Attorney's Fees and
The removal statute expressly provides that the court may award
"just costs and any actual expenses, including attorney fees,
incurred as a result of the removal . . ." of a case for lack of
subject matter jurisdiction. 28 U.S.C. § 1447(c). However, in
this matter the plaintiff Law Firm appears pro se. It is
well-settled that pro se litigants such at the Plaintiff in this
case are not entitled to fee awards or litigation expenses
authorized by fee-shifting statutes. See Kay v. Ehrler,
499 U.S. 432, 435, 111 S. Ct. 1435; 113 L. Ed. 2d 486 (1991);
Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S. Ct. 1933,
76 L. Ed.2d 40 (1983); Hawkins v. 1115 Legal Service Care,
163 F.3d 684, 695 (2d Cir. 1998); Bridges v. Eastman Kodak Co.,
102 F.3d 56, 58 n. 1 (2d Cir. 1996); see, e.g., Clarke v.
Parkinson, 225 F. Supp. 2d 345, 355 (S.D.N.Y. 2002) ("Where an
individual litigant elects to undertake legal research, or
factual research, or other case-related tasks, even in order to
save counsel fees, the litigant should not expect to have the
costs of his or her efforts included in any determination of
litigation expenses."). This principal applies equally to
attorneys at law firms that represent themselves or the firm in a
pro se capacity. See Menton v. Experian Corp., No. 02-4687,
2003 U.S. Dist. LEXIS 12457, at *10-11 (S.D.N.Y. July 17, 2003). Rule 11 governs motions for frivolous filings. "A pleading,
motion or other paper violates Rule 11 either when it has been
interposed for any improper purpose, or where, after reasonable
inquiry, a competent attorney could not form a reasonable belief
that the pleading is well grounded in fact and is warranted by
existing law or good faith argument for the extension,
modification or reversal of existing law." See Kropelnicki v.
Siegel, 290 F.3d 118, 131 (2d Cir. 2002) (internal citations and
quotations omitted). Courts impose Rule 11 sanctions with
discretion and caution. See Caisse Nationale de Credit
Agricole-CNCA v. Valcorp., 28 F.3d 259, 264 (2d Cir. 1994);
Puccio v. Town of Oyster Bay, 229 F. Supp. 2d 173, 178
Although the Court finds that Linda Sharp's current petition is
frivolous and unwarranted it declines to order sanctions because
she is pro se. However, Linda Sharp is warned that the filing
of another frivolous paper with the Court may result in monetary
sanctions under Rule 11.
Based on the foregoing, it is hereby
ORDERED, that the Plaintiff's motion to remand is GRANTED;
and it is further
ORDERED, that this action is hereby remanded to the Supreme
Court of the State of New York, County of Suffolk; and it is
further ORDERED, that the Plaintiff's motion for attorneys' fees and
sanctions under Rule 11 is DENIED; and it is further
ORDERED, that the Clerk of the Court shall mark this case as
closed and shall mail a certified copy of this Order of Remand to
the State Court from which it was improperly removed.
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